Tuesday, 25 May 2010

Attorney-General Robert McClelland spoke in Canberra today to commemorate International Missing Children's Day:

First, may I acknowledge the traditional owners of the land we meet on – and pay my respects to their elders, both past and present.

· Minister for Home Affairs, Hon Brendan O'Connor;

· AFP Commissioner, Tony Negus;

· Chief Police Officer for the ACT, Roman Quaedvlieg;

· Executive Director International Social Services, Fiona Skiotis

Today we are here to raise awareness about international parental child abduction.

This year’s focus for International Missing Children’s Day serves to remind us that sometimes children are abducted by the very people they trust the most – one of their parents. These children are taken away from almost everything that is familiar to them - their home, their friends and their familiar routines – often to a place far away that is strange to them.

Usually we know where an abducting parent has taken a child, through family, friends and official investigations. But sometimes the children must sadly be added to the list of internationally missing children.

Hague Convention

One of the best ways we have at present to combat international parental child abduction is the Hague Convention on the Civil Aspects of International Child Abduction. This international agreement currently operates in 81 countries worldwide, and more countries regularly seek to join it.

Since 1987 when the Convention entered into force in Australia, the Attorney-General’s Department has dealt with around 200 cases each year of international parental child abduction.

The Hague Convention provides the international legal means to overcome challenges and barriers that exist when a child is taken out of the jurisdiction they usually live in by a parent.

The Australian Government, through the Central Authority, works with similar authorities in the other Hague countries to locate and return children.

Support and Cooperation

I am pleased to be here today to outline Australia’s support to parents attempting to locate their children overseas and have them returned to Australia. Australia provides one of the highest levels of support in this regard in the world.

The Attorney-General’s Department does an enormous amount of work to locate these children and have them returned. Of the around 200 parental child abduction cases a year, most children abducted to and from Australia are found.

Case officers work on individual cases and provide a high level of support, including:

· Providing assistance in making a return application to a foreign government;

· arranging for translation of key documents;

· placing children onto Airport Alert Lists; and

· taking a range of other practical steps that are needed in individual cases, such as checking immigration and passport records, and referring parents to social support services.

There are many services funded by the Australian Government to support parents whose children have been taken. This includes several telephone numbers that concerned parents can call, including:

· an information phone line run by the Attorney-General’s Department that parents can call about what to do if they fear their child might be abducted, to check what countries are parties to the Hague Convention, and how to make an application for the return of a child - 1800 100 480.

· Parents can enquire about placing children’s names on the Airports Watch List by phoning the Australian Federal Police – (02) 9286 4000.

· Parents can get assistance from the Consular Section of the Department of Foreign Affairs and Trade – 1300 555 135.

The Attorney-General’s Department provides a specialist website with information for parents and legal advisers. The Department also provides financial assistance to attend court hearings overseas and to cover overseas legal costs.

The Australian Government also helps fund International Social Services, for the International Parental Child Abduction Service. This is a telephone referral and support service for families who are affected by international child abduction. The service has proved very effective in assisting parents in this difficult time and of encouraging the resolution of disputes outside a courtroom wherever possible.

Most importantly, partnerships have been forged both nationally and internationally across law enforcement agencies to find children abducted by their parents, and to identify and promote the significance of international parental child abduction in the community.

The Australian Federal Police, State and Territory Police, Interpol, International Social Services, the Attorney-General’s Department and other law enforcement agencies all work together to locate and progress the return of children who have been abducted by a parent.

Awareness

It is important for parents who suspect their child might be at risk of parental abduction to be aware of what can be done to prevent it.

In particular, the Airport Watch List is an invaluable way of preventing children from leaving the country without permission from the Courts or the other parent.

Through events such as today’s event and the specialist child abduction website, parents can learn about risks and what can be done to address them.

The key government agencies involved including the Attorney-General’s Department, the AFP, State Central Authorities, law enforcement and welfare agencies in the States and Territories, Immigration, the Passports Office, Centrelink and the Department of Foreign Affairs and Trade all continually work together. The Attorney General’s Department facilities regular meetings with these stakeholders, to discuss new ways of dealing with this difficult issue.

In conclusion, I would like to thank the families who have been courageous enough today to come forward to remind us and to share their stories about international parental child abduction.

Events like today are invaluable in raising community awareness of the problem of international parental child abduction.

To all the families and friends affected, I wish you the best, and hope our combined efforts will help bring your children home.

The Attorney-General Robert McClelland announced yesterday that Federal Magistrates undertaking family law work will be moved to a new second tier of the Family Court. This is what he told a press conference yesterday:

There has been concern voiced that there has been duplication of resources between the Federal Magistrates Court and the Family Court of Australia, in particular and most significantly in respect to parties' access to counselling resources. There has also been some inefficiencies in the ability to transfer matters between the the Federal Magistrates Court and the Family Court. And there have also been concerns expressed, as recently as January of this year, with the Australian Institute of Family Studies expressing concern about the disparity in approaches between the two courts giving rise to potential unfairness.

On that basis, there will be a restructure in respect to the family law jurisdiction of the Federal Magistrates Court. Federal Magistrates undertaking family law work will be offered commissions on the Family Court of Australia. They will be offered a commission as a judge, but it will be to preside in a lower tier of the Family Court. They will not be entitled to traditional judicial superannuation arrangements. Their conditions will otherwise be preserved.

It's anticipated that the legislation will be introduced in the winter sessions of Parliament. That, of course, will be dependent on the timetabling of the House and Senate programs, but we are certainly keen to get that legislation on as soon as we can, with the new court structures to operate in late 2011.

There will, of course, be consultation in terms of arrangements involving the courts, the military and also with the Law Council of Australia.

Sunday, 23 May 2010

The solicitor who apparently set up a "deliberate and fictitious strategy" to help her client cover up his real worth, may be referred by a Family Court judge to the Legal Services Commission. Her client, the husband, demonstrated what he thought of the wife by calling the wife in bank deposit documents "gold digger".

In the recent Family Court case of Lambert and Jackson, the husband, who later gave an undertaking to stop calling his ex "gold digger" on all documents, had a business partner, Mr EN, who wanted to retire. The judge found that on its face the husband contrived with his solicitor to cook up a plan to cover up the retirement.

The reason for this was simple: a valuation of the husband's interest in the company had already been prepared, and if the buy out of Mr EN's interest became known, then a new valuation would have to be prepared, meaning that the wife would have to be paid more.

The trial judge, Justice Watts, stated that "by the end of the hearing the husband’s creditability was in tatters" and:

The husband had told those advising him that no concluded agreement with Mr EN had been reached when that was not true. Mr EN’s demands had been accommodated by the husband by the commitments he had made to Mr EN. The husband does not have to be a lawyer to know that it would be unsafe to rely upon advice given upon factual information which the husband knew was wrong.

The judge ordered that the solicitor, Ms Y, have an opportunity to respond before he took the step of referring her to the Legal Services Commission. His Honour stated:

Ms Y was not a party to these proceedings and has not yet been heard. Any primafacie findings about her involvement in non disclosure so far as they relate to any disciplinary proceedings against her are subject to any evidence she might wish to give and evidence others might give about relevant matters.

I am mindful that any inquiry by the Legal Services Commissioner may involve hearing from the husband, counsel for the husband, [his commercial lawyers] and Mr EN.

There is primafacie evidence that on the morning of 6 August 2009 Ms Y had a conversation with the husband’s commercial lawyer... about “the [R] deal”. [The commercial lawyer] recorded Ms Y’s initial concern that any alteration of the partnership or corporate group would see the wife calling for a new valuation.

There is prima face evidence that, later on 6 August 2009 Ms Y and the husband met. I infer that on 6 August 2009 the husband and primafacie Ms Y concluded that it would not be advantageous in this case for the husband to disclose his arrangements with Mr EN because it would inevitably cause a revaluation of the husband’s interests and the husband and primafacie Ms Y had concluded that that valuation would be a higher value. They both rang [the commercial lawyer] to discuss a strategy which had as its central purpose, eliminating the risk of discovery by the wife and the court of the agreement which had been reached between the husband and Mr EN OR alternatively, structuring the documentation so it appeared that “discussions” and “negotiations” continued, when in reality an agreement between Mr EN and the husband for Mr EN, to relinquish his interests, had been reached.

On 6 August 2009 Ms Y wrote an email to [his commercial lawyers]. Primafacie, that email was written in furtherance of the strategy that had been developed between the husband and Ms Y on that day. She sought a confirmation from the husband’s commercial lawyers. She never received such a confirmation. They were not prepared to give the confirmation that Ms Y sought.

On 7 August 2006 Ms Y received an email at 11.21am setting out the details of a staged deal. Stage 2 of that deal was that the execution of all remaining documents and final adjustments would be deferred until AFTER the family law settlement, which was expected to be in October 2009.

Primafacie,there was a deliberate and fictitious strategy devised by Ms Y where she contrived with the husband to deceive the wife and the court.

On 7 October 2009 Ms Y electronically filed an Undertaking as to Disclosure... The undertaking as to disclosure ... was prepared by Ms Y and signed by the husband. Ms Y provided a certificate in the following terms:

“I am the lawyer for the person giving the undertaking and I certify that I have explained to the person giving the undertaking:

(a) the nature and terms of the undertaking; and

(b) that the undertaking is a promise to the court to comply with its terms; and

(c) the undertaking has the same effect as an order of the court; and

(d) that a breach of the undertaking may be a contempt of the court punishable by a fine or imprisonment.”

Ms Y prepared an affidavit sworn by the husband on 23 October 2009 and took the husband’s oath before he swore that affidavit. The primary purpose of this affidavit was to address allegations that the husband had failed to make full and frank disclosure. It did not mention anything about the agreement which had been reached between the husband and Mr EN, nor anything about any of the transactions that the husband had actually been involved in with Mr EN.

On 23 October 2009 Ms Y also prepared and took the husband’s oath when he verified his financial statement. That financial statement did not disclose the agreement that had been reached between the husband and Mr EN.

Ms Y instructed counsel for the husband at the hearing and was present at the bar table during the four days of the hearing (26 - 29 October 2009). On 27 October 2009 and again on 28 October 2009, the husband gave false oral evidence about the agreement which had been reached between the husband and Mr EN. Primafacie, Ms Y knew that the evidence was false but, remained silent and continued to act for the husband to the conclusion of the hearing.

As I indicated on the final day of the hearing, the matter will be relisted so Ms Y has an opportunity to lead evidence and/or address me, if she wishes to, as to whether she should be referred to the Legal Services Commission.

Counsel for the husband’s primafacie lack of knowledge about the deception

I have nothing to indicate counsel for the husband received any instructions from the solicitor for the husband about her knowledge of the arrangements between Mr EN and the husband.

In final submissions and before the [husband's commercial lawyers] files arrived, counsel for the husband said “you have, in my submission, sufficient evidence to know that Mr [EN] is not going to walk away for nothing”. I infer from that counsel for the husband had no idea about the discussions that his instructing solicitor had with the husband’s commercial lawyers.

Thursday, 20 May 2010

Children are spending considerably less time with their fathers than their mothers, according to research released today by the Australian Institute of Family Studies.

Australian children spend relatively small amounts of time with their fathers, without their mothers also present, the research found.

On weekdays children may spend as little as half an hour alone with their fathers.

Even on weekends, children spend only a relatively small number of hours with their father when their mother isn’t there – varying from 0.8 hours a day for infants to 1.4 hours for two to three year olds and 1.5 hours for eight to nine year olds.

“Children spent considerably more time with their mother than their father, in fact they spent relatively small amounts of time with their fathers without their mothers, whether that be during the week or on weekends,” said Institute Research Fellow Dr Jennifer Baxter.

“What’s interesting about this is that 74 per cent of eight and nine year old children say they definitely like spending time with their father and their mother. Another 23 per cent say that it was mostly true that they like spending time with their father and their mother.

“Not surprisingly parents enjoy spending time with their children. But fathers are a little more inclined than mothers to say that they only sometimes enjoyed spending time with their children,” Dr Baxter said.

The research found that when fathers were asked if they enjoyed spending time with their children:

■28 per cent said they always or almost always did

■51 per cent said they often did

■21 per cent said they sometimes or less often did.

By contrast, 40 per cent of mothers said they always or almost always enjoyed spending time with their children, with 49 per cent saying they often did and 11 per cent saying they sometimes did.

“What does this say about fathers’ involvement in families? It can certainly vary from family to family but what we do know is that children report that they like to be with their parents, with 75 percent of children also saying they have fun with their families lots of times,” Dr Baxter said.

“But while fathers spend small amounts of time alone with their children, they do spend time with them, with their wives and partners there, especially on weekends, when children spend between 5 and 6 hours with both parents,” she said.

The data is part of Growing Up in Australia: The Longitudinal Study of Australian Children, that collects information about children from birth to the beginning of middle childhood and drew on data collected between 2004 and 2008.

The research also reveals that children are generally happy in school. “Sixty-four per cent of Australian school children say they’re happy at school and given that children spend many hours there it’s good that for most young children this is a happy experience.

While not all are very enthusiastic about going, once there the majority enjoy it,” Dr Baxter said.

Wednesday, 19 May 2010

Last week I presented a paper for Australia's CEO Challenge about same sex domestic violence. Here it is without the footnotes, and following an email from OII Australia, some minor changes regarding intersex issues.

IT HAPPENS TO US, TOO

Same sex domestic violence

11 May, 2010

Stephen Page

Harrington Family Lawyers

www.harringtonfamilylawyers.com

spage@harringtonfamilylawyers.com

Introduction

I want first to acknowledge the traditional owners, being the Turrbal people on this side of the Brisbane River, and the Jagera people on the other side of the river.

I note that there are LGBT Aboriginal and Torres Strait Islander people, and that regrettably same sex domestic violence has occurred within that community.

“The respondent and the aggrieved were and still are involved in an intimate relationship.

On 19 January 2009 a domestic violence protection order was granted in the Ipswich Magistrates Court and served on the respondent on 24 January 2009. That domestic violence protection order was to run for two years from 19 January 2009.

On 23 March 2009 at 1.40 am police were called to a disturbance at an address in Raceview. On arrival there the police saw the aggrieved in the front yard of the residence with a laceration to his head and blood on his head, face and chest. They also noticed a number of household items on the lawn and a vehicle in the driveway in a damaged condition.

Police spoke with the aggrieved who advised that he and the respondent were partners. They had attended a party in Yamanto earlier in the evening. The aggrieved had left the party early in the evening and went home. The respondent arrived later and an argument occurred.

During the course of the argument the respondent began to throw property around the house and out the window on to the front lawn. He retrieved a knife from the kitchen and presented it to the aggrieved and then began swearing and yelling and demanded that the aggrieved leave. The aggrieved exited the house after being struck in the face by the respondent. He went out into the front yard and the respondent threw a kettle at him and then struck him with a hat stand in the head causing the stand to break. Finally he retrieved a rock from the garden and threw it through the window of the aggrieved’s vehicle shattering the window.

The respondent then returned to the house while the aggrieved contacted the police. The respondent admitted to striking the aggrieved and throwing the kettle but declined to comment on how the property and the vehicle were damaged.”

This fact scenario demonstrates that same sex domestic violence is alive and well within our community. What is also telling about the facts of that case was that the gay couple in question were not living in New Farm or other well known suburbs where many gays live, but everyday suburban Ipswich. This reflects the reality that gays and lesbians live throughout Queensland, and that same sex domestic violence can occur anywhere.

Ms Sharon Stapel, the Executive Director of the New York City Gay and Lesbian Anti-Violence Project, has summarised issues concerning same sex domestic violence:

“Domestic violence in the lesbian, gay, bisexual, and transgender communities is an often ignored, sometimes confused, and rarely discussed problem. For the LGBT communities fighting for equality and the legitimization of their relationships, it can be difficult to admit that battering occurs. Many traditional models for addressing domestic violence assume intimate partners are heterosexual and omit reference to LGBT victims or craft solutions that fail to account for the impact of sexual orientation or gender identity. Some advocates and organizations may not know how to even begin to talk about the issue because of a lack of familiarity with the language or culture of the LGBT communities…

…The lesbian, gay, bisexual, and transgender communities are not interchangeable. For practitioners new to the issues of the LGBT communities, some of the language used to describe LGBT people and their partners or their identities can be confusing. Gender identity is often confused with sexual orientation. Sexual orientation is commonly defined as our preference for sexual partners — either same or opposite-sex partners. Lesbians generally identify themselves as women who partner with other women. Gay men generally identify themselves as men who partner with other men. Bisexual people often identify themselves as people who partner with same and opposite-sex partners. Gender identity, on the other hand, is commonly defined as a sense of ourselves as masculine, feminine or at some other point along that spectrum. Transgender people may define themselves as male or female or in a differently defined gender (or lack of gender). While some trans people do identify as “queer” (either because they are involved in same-sex relationships or because their sexual orientation is not “straight”), others define their sexual orientation as straight or heterosexual.”

Legal Issues

It is now possible to obtain protection orders or their equivalent in each State and Territory of Australia for same sex couples. I say State and Territory, because all the legislation is State (or Territory) based and there is no uniform Commonwealth legislation.

In Queensland, protection orders can be obtained under the Domestic and Family Violence Protection Act 1989 which, since 2003, has extended to same sex couples. Three things need to be shown:

(1) That there is a domestic relationship between the parties: s.11, s.20(1)(a);

(2) That the respondent has committed an act of domestic violence against the aggrieved: s.20(1)(a); and

(3) The respondent is likely to commit an act of domestic violence again or if the act of domestic violence was a threat – is likely to carry out the threat: s.20(1)(b).

Domestic relationships are:

(a) A spousal relationship. A spouse includes – (a) a former spouse; and (b) either of the biological parents of a child. Of necessity it includes those parties who are married or living in a de facto relationship. By virtue of Section 32DA of the Acts Interpretation Act 1954 :-

(i) “In an Act, a reference to a de facto partner is a reference to either one of two persons who are living together as a couple on a genuine domestic basis who are not married to each other or related by family;

(v) For sub-section (1) – (a) the gender of the persons is not relevant….”

(b) An intimate personal relationship exists between two people if they are or were engaged to be married to each other, including a betrothal under cultural or religious tradition – s.12A(2) also, an intimate personal relationship exists between two persons, whether or not the relationship involves or involved a relationship of a sexual nature if – (a) the persons date or dated each other; and (b) their lives are or were enmeshed to the extent that the actions of one of them affect or affected the actions or life of the other: s.12A(2).

An intimate personal relationship may exist whether the two persons are the same or the opposite sex: s.12A(4).

(c) An informal care relationship is to cover those situations where someone is abused by their carer. This in the family relationship category was brought into existence following lobbying from activists within the then Queensland Aids Council (now Queensland Association for Healthy Communities) and from seniors groups. The activists of the Queensland Aids Council expressed a concern about carers of HIV people abusing those in their charge.

(d) A family relationship. If you are related to someone then you may be eligible to obtain a protection order against them. You need, ordinarily, to be related to them by blood or marriage, but family relationships can be wider than that, for example in Aboriginal and Torres Strait Islander communities.

Who is covered by the Queensland legislation?

What has been clear since 2003 is that the Queensland legislation does not discriminate. The people who are covered include:

• A married couple, including if one of the parties is trans

• A heterosexual de facto couple

• A homosexual de facto couple

• A de facto couple if one of the parties is trans

• A couple who have had an intimate personal relationship who are enmeshed

• A mother of a child and the father of the child (when they have never lived together)

• A mother of the child and the sperm donor father

• An HIV man and his informal carer

• A parent and their child (if the child is over 18)

Who is not covered?

• Anyone who does not fit within the definitions

• Neighbours would not normally be included

• A spouse of a person and the former spouse of that same person

• In-laws, when the reliance is on a de facto relationship (with some exceptions)

The joys of marriage

The only marriages recognised in Australia are those between “one man and one woman to the exclusion of all others, voluntarily entered into for life” . Foreign marriages are only recognised if they meet this definition. Therefore, same sex marriages solemnised overseas are not recognised in Australia, and are, for the purposes of Queensland law, de facto relationships.

The reason why this may be important in the context of domestic violence law is because of the definition of “family relationship” and “relative”.

Section 12B (2) to (4) provide:

“(2) A relative, of a person, is someone who is ordinarily understood to be or to have been connected to the person by blood or marriage.

(3) For deciding if someone is related by marriage, any 2 persons who are or were spouses of each other are considered to be or to have been married to each other.

(4) A relative of a person (the relevant person) is also either of the following persons if it is or was reasonable to regard the person as a relative especially considering that for some people the concept of a relative may be wider than is ordinarily understood--

(a) a person whom the relevant person regards or regarded as a relative;

(b) a person who regards or regarded himself or herself as a relative of the relevant person.

Examples of people who may have a wider concept of a relative--

1 Aboriginal people

2 Torres Strait Islanders

3 members of certain communities with non-English speaking backgrounds

4 people with particular religious beliefs.”

(emphasis added)

I have differentiated between marriage and de facto relationships in part because from talking to other lawyers, I have learnt that magistrates, in my view incorrectly, have excluded people as “relatives” when the relationship is through a de facto relationship (as opposed to a marriage).

Example 1

Moira and Mildred lived in a lesbian relationship for several years. They have since separated. Moira’s mother Mabel has been stalking Mildred.

Can Mildred obtain a protection order against Mabel (assuming that Mabel’s behaviour is domestic violence)?

Yes, she can.

Mabel is Moira’s mother. Moira and Mildred lived in a de facto relationship. Therefore, by virtue of section 12, Moira and Mildred were spouses. By virtue of section 12B(3), Mabel is deemed to have been related to Mildred.

Example 2

Sean and Cody had a long term relationship. Theirs was an open relationship. They would spend each weekend together, mostly at Sean’s place (as it had air conditioning and a pool). Assuming that there has been domestic violence by Sean to Cody, Cody comes to you asking if he can obtain a protection order against Sean.

Yes, he can.

Sean and Cody were either in a de facto relationship, or more likely in an intimate personal relationship.

Example 3

Not only was Cody trying to stop Sean’s violence and abuse, but Cody describes how Sean’s mother, Brunhilde “a real battleaxe” in Cody’s words, also engaged in domestic violence towards Cody.

Brunhilde

Can Cody obtain a protection order against Brunhilde?

No, he probably couldn’t. The court would need to determine first whether the relationship between Sean and Cody was a de facto relationship or an intimate personal relationship. If the former, Cody could obtain an order, as Cody and Brunhilde would be relatives, due to the spousal relationship between Sean and Cody. If the relationship between Sean and Cody were an intimate personal relationship, and not a spousal relationship, then Cody and Brunhilde would not normally be considered relatives, unless they were in the broader category of relatives.

Example 4

For the last 5 years, Brunhilde has told all and sundry that she is the “luckiest woman alive” as “I now have two sons”, and that “Cody is my favourite son-in-law”. Cody would come to Brunhilde’s house with flowers, call her “mum” and tell her that he loved her.

Could Cody obtain a protection order against Brunhilde?

Yes, he can.

Even if the court found the relationship between Sean and Cody to have been an intimate personal relationship and not a spousal relationship, Cody would be able to obtain a protection order, because in the wider category of relatives, both Cody and Brunhilde clearly considered that they were related to the other.

Example 5

Jan and Marcia decided to have a baby. They live in a de facto relationship. They approach their friend Greg, who agrees to be the sperm donor. Marcia gives birth to a bouncing boy Bobby.

Greg wants to see Bobby. Jan tells him very bluntly to stay away: “Well, all day long at work I hear how great Greg is at this or how wonderful Greg did that! Greg, Greg, Greg! Leave us and our baby alone. You were just the sperm donor. No more, No less.”

Greg does not like this and starts harassing and intimidating Jan.

Can Jan obtain a protection order against Greg?

Not certain.

Marcia and Greg were in a spousal relationship as they are the biological parents of a child. Jan and Marcia were in a de facto relationship with each other. The Act does not appear to allow for Marcia to have two spousal relationships i.e. one with Greg as parents of a child, and one with Jan. If the court considered that it did, then Jan could obtain an order against Greg. If not, then she cannot.

Example 6

John has AIDS and is bed ridden. He has a friend, George who cares for him, including doing his shopping, some nursing of him, and accompanying John to the doctor’s. George believes that John is having an affair with Paul, and starts abusing John all the time.

Assuming that it is domestic violence, can John obtain a protection order against George?

Yes, he can. George and John are in an informal care relationship.

Example 7

Assume that the reason George tends to John is that George is a volunteer organised by the Queensland Association for Healthy Communities. No fee is paid for the service by John. Can John obtain an order against George?

Doubtful. If John had an arrangement with QAHC for George to tend to him: no, he can’t.

If John had no such arrangement, then probably: yes, he can.

Example 8

Kevin and Julia live in a de facto relationship. One day, Julia comes home from work early, to find Kevin playing dressups in her lingerie. Kevin announces that he is trapped in his body, and is really a woman. Shortly after that, Kevin announces that he wants to be called Anna.

Julia is in shock. However, her first preference was also with another woman, and commences a relationship with Nicola.

Julia starts abusing and hitting Anna, telling her that she, Anna, is not a “real woman”, unlike herself, Julia and unlike Nicola.

Can Anna obtain a protection order against Julia?

Yes, she can.

Anna and Julia live in a de facto relationship. Their gender and sexuality is irrelevant.

How is same sex domestic violence the same as or different from heterosexual domestic violence?

Domestic violence has some common themes:

• It’s been with us forever.

Susan Holt identified in 2002:

“The first court transcript documenting violence in a lesbian relationship appeared in Germany in 1721”

and on January 2001, Wanda Jean Allen was executed in Oklahoma for the 1988 murder of her partner, Gloria Leathers.

In 1994, Robert McEwan was arrested in Perth and charged with the unlawful murder of his same sex partner of 14 years. McEwan’s partner died from multiple stab wounds. McEwan pleaded not guilty basing his defence on the battered wife syndrome and provocation and gave a litany of evidence of how he had been abused by his partner, physically, sexually and emotionally for many years. The jury was unable to reach a verdict. The matter was referred back to the Director of Public Prosecutions who then decided not to proceed with the wilful murder charge. A plea to the lesser charge of manslaughter was recorded.

• It typically crosses all socio-economic and racial barriers

• It can be committed by men to women in heterosexual relationships

• Or for that matter women to men

• Or men to men

• Or women to women

• Or as you have seen where one of the parties is trans, or indeed intersex

• It involves notions of one party controlling or attempting to control the other by a variety of tools, including physical, emotional, sexual, social isolation, use of children, and finances.

• Victims are ashamed, afraid and embarrassed to complain.

• People do not like talking about it, with the result that it is often hidden by that silence.

There are a myriad of definitions of domestic violence. As useful as any other is that contained in section 11 of the Domestic and Family Violence Protection Act 1989:

“(1) Domestic Violence is any of the following acts that a person commits against another person if a domestic relationship exists between the two persons –

(a) wilful injury,

(b) wilful damage to the other person’s property.

Example: wilfully injuring a de facto’s pet.

(c) intimidation or harassment of the other person.

Examples–

(1) following an estranged spouse when the spouse is out in public, either by car or on foot

(2) positioning oneself outside a relative’s residence or place of work

(3) repeatedly telephoning an ex boyfriend at home or work without consent (whether during the day or night).

(4) regularly threatening an aged parent with the withdrawal of informal care if the parent does not sign over the parent’s fortnightly pension cheque.

(d) indecent behaviour to the other person without consent.

(e) a threat to commit an act mentioned in paragraphs (a) – (d).

(2) The person committing the domestic violence need not personally commit the act or threaten to commit it.”

Frequency of Same Sex Domestic Violence

“Domestic violence is a major health concern for gay, lesbian, bisexual, and transgender communities in Australia and overseas. It has been argued that domestic violence is the third most severe health problem for gay men, following HIV/AIDS and substance abuse. A recent large scale Australian study - Private Lives: A report on the health and wellbeing of GLBTI Australians, investigated the level of intimate partner abuse in same sex relationships and found that 32.7% of respondents had experienced violence or abuse in a relationship. ”

There is a general paucity of research about prevalence rates. The best that can be ascertained is that same sex domestic violence is at least as frequent per capita as amongst heterosexual couples. There are some who argue that the rates are higher and others that the rates are lower. US research suggests that domestic violence occurs in about 30% of same sex relationships.

Sharon Stapel in her article states:

“Domestic, or intimate partner, violence occurs within the lesbian, gay and bisexual communities with the same statistical frequency as in the heterosexual community. Although few studies have been done, preliminary data suggests that domestic violence may occur at a higher rate in transgender relationships.”

ACON Report: Fair’s Fair

Groundbreaking research was undertaken by the Aids Council of NSW (ACON) in 2006. It must be treated with caution, as the numbers are small, only 308 respondents in total. These people were asked to fill out a 2 page questionnaire at the 2006 Sydney Pride’s Fair. The key findings were:

• Similar patterns of violence and abuse occurred across all genders in the sample.

• Overall, including responses from participants of all genders and for both previous and current relationships, the types of abuse indicated ranged from: controlling-jealous behaviour (47.7%); humiliation (45.1%); physical abuse (34.4%); social isolation (30.8%); financial control (17.8%); sexual abuse (16.8%) and outing (16.8%).

• Young people aged 15-25 recorded high levels of some forms of abuse, particularly humiliation, outing and controlling or jealous behaviour.

• A majority of respondents who reported any abuse in a current or previous relationship (57.7%) did not seek any support in relation to the abuse.

• 67.1% of male respondents who reported one or more forms of abuse in a current or previous relationship did not seek any support.

• The most common type of assistance accessed by participants who had experienced abuse was informal support from family or friends (32.8%). The most common type of formal support sought was provided by a counsellor, psychologist or social worker (19.0%).

• 13.8% of respondents who reported abuse in their current relationship have children under the age of 16 in their care. It was more common for women (26.6%) than men (5.2%).

• 16.3% of respondents who reported one or more forms of abuse in a previous relationship indicated that they had children in their care during the relationship.

• Respondents who reported abuse in a previous relationship were more likely to have entered into subsequent abusive relationships.

Rank Types of abuse

Number of respondents % of respondents

1. Acted over-protective and become jealous for no reason

133 43.2

2. Humiliated you, called you names or made fun of you to make you feel worthless

130 42.2

3. Hit, kicked, pushed or thrown things at you

100 32.5

4. Made it difficult for you to attend social events or to see friends or family

87 28.2

5. Controlled your money against your will

52 16.9

6. Forced you to engage in sexual acts that you weren’t comfortable with

48 15.6

7. Threatened to ‘out’ you to your family, friends or work

44 14.3

Total number of respondents

308

Types of abuse- current female relationships

Rank Types of abuse Numbers of respondents % of respondents

1. Humiliated you, called you names or made fun of you to make you feel worthless

9 4.7

2. Acted over-protective and become jealous for no reason

9 4.7

3.

Made it difficult for you to attend social events or to see friends or family

5

5 2.6

4.

Threatened to ‘out’ you to your family, friends or work

2

1.1

5.

Forced you to engage in sexual acts that you weren’t comfortable with

2

1.1

6.

Hit, kicked, pushed or thrown things at you

2

1.1

7.

Controlled your money against your will

1

0.5

Total number of respondents 189

The report identified these key issues:

• The cumulative impact of abuse and re-victimisation. Respondents who reported abuse in a relationship were more likely to have entered into subsequent abusive relationships and endured several violent partners; therefore the cumulative impact of abuse needs to be considered.

• There were high levels of threatened ‘outing’ and social isolation; these specific aspects of abuse have a unique impact upon people experiencing DV in same sex relationships.

• Young people aged 18-25 reported high levels of humiliation, threatened ‘outing’ and controlling or jealous behaviour. Young people entering into first relationships are particularly vulnerable to experiencing abuse.

• Sexual health risks associated with sexual assault and forced sexual acts have potential repercussions of HIV and or other sexually transmitted infections.

• The effects on children of witnessing or experiencing violence or abuse is pertinent for same sex relationships, with 13.2% of respondents who had indicated violence or abuse in a current/previous relationship reporting that children were present in the relationship.

• Generally low levels of assistance were sought by respondents who previously or currently experienced abuse. Only 42.3% of respondents who reported abusive behaviour accessed any kind of support service. There was a significant gender based difference with only 32.9% of male respondents accessing some type of assistance compared to 46.5% of females.

• Friends and family provided the most common form of support reinforcing the need to maintain community awareness of domestic violence in same sex relationships. 32.8% of respondents who reported one or more forms of abusive behaviour accessed support from friends and family.

• Although the majority of the respondents were from the metropolitan Sydney area, a number of respondents who reported abusive relationships were from regional NSW.

What is intersex?

"Intersex is physical difference in anatomical sex. That is, physical differences in reproductive parts like the testicles, penis, vulva, clitoris, ovaries and so on. Intersex is also physical differences in secondary sexual characteristics such as muscle mass, hair distribution, breast development and stature.

Intersex can include things that are invisible to the eye such as chromosomal and hormonal differences. Those kinds of differences usually have a manifestation in primary or secondary sexual anatomy that is visible either externally or internally.

We are intersex because it is thought the kinds of differences in our anatomy seem to be either male and female at the same time or not quite male or female or neither male or female.

So we have physical differences that confuse medicine’s anatomical ideal of male and female.

Intersex is not always immediately apparent because in our society we do not commonly look at each other’s genitals or internal organs."

Myths and Realities about Same Sex Domestic Violence

Myth

• Domestic violence is more/less common in heterosexual relationships than it is in LGBT communities;

• Only heterosexual women are subject to domestic violence.

Reality

• Studies indicate that domestic violence occurs in LGBT communities with similar frequency and severity as in the heterosexual community and affects as many as one in three relationships. The general view is that domestic violence in heterosexual relationships occurs in a range of between 1 in 4 and 1 in 3 relationships. Similar rates appear to be occurring in same sex relationships. There is a view that there is a higher rate of domestic violence involving trans people. There is also a view that the rate amongst same sex relationships may be higher due to the higher use of drugs and alcohol (which act as disinhibitors).

• Men as well as women are perpetrators or survivors of domestic violence.

Example

Some years ago I visited a colleague who ran the same sex domestic violence clinic in Los Angeles. Difficulties were caused for her by others on the area’s domestic violence taskforce, as others did not consider that males could be survivors of domestic violence and that only women could be. As an out lesbian lawyer, who was representing both gay and lesbian survivors of same sex domestic violence, she found these views particularly challenging. She said to me: “My gay clients are just as much subject to domestic violence as women.”

Myth

• Violence in LGBT partnerships is “mutual combat” or a “lover’s quarrel”. It really isn’t violence when a same sex couple fights. It’s a fair fight between equals. It isn’t violence when gay men fight. Its just “boys being boys”;

• LGBT persons are more likely to equally participate in the violence than are heterosexuals.

Reality

• Partner abuse/domestic violence involves one partner who is exerting power and control over another. It can include coercion, intimidation, physical and sexual violence. Labelling violence as “mutual” or as a “lover’s quarrel” minimises and denies the severity of the abuse;

• While LGBT survivors may be more likely to fight back in self defence due to perceived equality and/or lack of LGBT specific and sensitive resources, abuse in relationships is not “mutual” and “lover’s quarrels” are typically not lethal.

Example

Peter and Paul were in a long term relationship. Peter was older than Paul. Paul had a major drinking problem. He would drink on average one bottle of vodka or two bottles of wine daily. Paul was often abusive towards Peter. One night Peter had had enough and hit Paul with the phone handset three times.

Paul obtained an emergency protection order, including an ouster order. Police removed Peter from the home.

Subsequently it was discovered, through the court process, that Paul was the primary aggressor, not Peter.

Myth

• LGBT partner abuse is primarily found in relationships when partners are in “roles”;

• The perpetrator is usually more masculine, stronger and larger, while the victim is usually more feminine, weaker and smaller;

• Women do not assault/men cannot be assaulted.

Reality

• Partner abuse is about one person exerting power, dominance and control over another. The abuse can be physical, sexual, verbal, emotional, psychological and/or financial in nature and may involve the use of weapons and threats as well as homophobic/biphobic/transphobic control. Exerting power does not require the perpetrator to be larger or physically stronger. LGBT partner abuse is not confined to “gender roles”. However, magistrates have informed me that the typical same sex cases coming through Brisbane Magistrates Court are the stereotypical cases. Those I have seen have not fit the stereotypes.

Example

Kevin and Tony live together in New Farm. One night, after they have had too much to drink, they argue violently, because Kevin will no longer put up with Tony’s control and dominance of him. The neighbours call police. Tony tells police that Kevin smashed a wine glass and threatened him. Kevin tells police that Tony is always telling him what to do, whom he can see, controlling his finances, and doesn’t allow him air to breathe. Kevin admits that they had an argument and that this was the final straw. Kevin is told by police: “You’re a big boy now. Look after yourself.” Kevin breaks down crying and screaming. Kevin admits he smashed the wine glass. Police take Kevin away, and obtain a temporary protection order against him.

Example from a heterosexual relationship

Bob and Mary had been in a relationship. One day Mary came to Bob’s workplace. There was an argument. Both were hurt. Mary was very short. Bob was 2 metres tall and heavily built. His nickname was “Stretch”. Who was the perpetrator?

Police believed that Bob was. When convincing independent evidence was put before the police showing Mary as the perpetrator, despite their size differences, police withdrew their involvement.

Myth

• LGBT partner abuse occurs primarily among women and men who are poor, people of colour and those who frequent bars.

Reality

• Chronic abuse occurs in approximately one in three relationships regardless of sexual orientation, ethnicity, socio-economic status, education, religious affiliation, political ideology, physical ability, etc. Domestic violence crosses all boundaries and does not discriminate. Abuse happens more frequently in those relationships where people are poorer and less educated, and less frequently in those relationships where the people are richer and better educated.

• Although substance use is a co-factor to domestic violence, it does not cause abuse. Substance abuse acts as a disinhibitor. Therefore the use of drugs and alcohol is frequently associated with domestic violence. With the possible exception of speed and ice, it is not seen as a cause of domestic violence.

• As seen in the case example at the beginning of the paper, domestic violence can occur in any relationship in which dominance and control exist.

Myth

• As same sex couples are more likely to be equal in size, the damage inflicted by the lesbian or gay perpetrator is typically less than that inflicted by the male heterosexual perpetrator. The acts of violence perpetrated by gay men are more severe than acts of violence perpetrated by female perpetrators.

Reality

• Both men and women are capable of committing acts of severe violence. Some female abusers have stabbed, shot, brutally beaten and/or killed their partners. Dismissing the potential severity of same sex violence is dangerous.

• As seen in Robert McEwan’s case, same sex domestic violence can be just as brutal as other domestic violence.

• Women who have come out of violent heterosexual relationships into the utopia of lesbian life, may discover that domestic violence is alive and well in lesbian relationships too.

Myth

• Violence occurs in the LGBT communities because of the high rates of alcohol and drug use.

Reality

• Drinking and drugs are disinhibitors: they lower control over inhibitions which sometimes prevent people from being violent. However, just as in heterosexual partner abuse, many abusers do not abuse substances and/or do not necessarily commit acts of domestic violence while using substances. Ultimately, relationship violence is about the choice one partner makes to exert control over the other. Regrettably there can be a strong connection between the use of certain drugs and domestic violence, such as alcohol, marijuana, speed and ice, but alcohol and drug use in and of itself is not a cause of domestic violence.

Myth

• The law does not/will not protect LGBT victims of partner abuse.

Reality

• In Australia, legislation specifically includes LGBT victims, such as the Domestic and Family Violence Protection Act 1989;

• LGBT women and men survivors of domestic violence are as likely to identify themselves as survivors as are heterosexual women;

• Same sex domestic violence often remains unseen and invisible. Many individuals are overlooked and do not receive needed help. There is a lack of recognition and legal legitimacy for LGBT families and, because domestic violence is thought to occur most commonly in heterosexual relationships, those in LGBT communities may not even realise that they are experiencing it or may be apt to believe that they are to blame.

Myth

• Children are not an issue for battered lesbians and gay men.

Reality

• Many LGBT families have children through prior relationships, adoption, artificial insemination, etc. Unfortunately, as with all families, children often witness violence exerted by one parent over the other. According to Fair’s Fair, 13.2% of respondents who had indicated violence or abuse in a current/previous relationship reported that children were present in the relationship. Typically, there are higher rates of children in lesbian households than in gay households.

Myth

• It is generally easier for LGBT victims of domestic violence to leave an abusive partner or seek help than it is for battered heterosexual women.

Reality

• It is generally more difficult for LGBT survivors to seek help than it generally is for heterosexual women. There are few LGBT specific resources available and many service providers are not trained to provide culturally competent services to LGBT individuals. There are no LGBT refuge services for any men. There is a general lack of recognition in the funding of services for men who are the survivors of domestic violence. LGBT individuals may fear that they will be treated with prejudice, judged, not believed or taken seriously. Additionally, seeking services for partner abuse forces LGBT people to reveal their sexual orientation which is always a major life decision that may result in the loss of family and friends, employment, children, etc.

• Many LGBT people have no support from their families because of the refusal of the family to accept the LGBT person’s sexual orientation or gender identity.

• There are issues for both lesbian survivors being housed with their abusers and accommodation for trans survivors.

• There are issues for lesbian survivors and their perpetrators being helped in the same domestic violence or court support programs.

Sharon Stapel again:

“Some forms of battering are unique to the LGBT communities. Batterers have an additional weapon in the threat of “outing” their partner’s sexual orientation or gender identity to family, friends, employers, landlords or other community members. Same-sex survivors of domestic violence faced with custody battles may worry that their sexual orientation will negatively impact their case and decide to stay with an abuser rather than risk losing custody or visitation rights. Batterers who abuse their transgender partners often tell their partners that no one will understand or love them because of their gender identity or transition process, or they may threaten to evict their transgender partner, leaving the survivor homeless and facing dangers in the streets, the homeless shelters and the job market. Survivors may face further isolation because they are reluctant to access services that are not perceived as LGBT-friendly. For some LGBT survivors, their batterer may be the first person to accept their sexual orientation or gender identity and batterers may use this knowledge to keep a survivor isolated.

It can be difficult for an LGBT survivor to access services. Models based on heterosexual relationships can be alienating and seemingly irrelevant to same sex survivors. Survivors who must out themselves to service providers may be afraid that they will be treated disrespectfully or be denied services. LGBT survivors may not have the energy to educate advocates unfamiliar with LGBT communities about their experiences and cultural norms. LGBT survivors also may understand the restricted access they have to civil legal remedies and may not seek services because it is unclear that the law will afford protection.”

Myth

• There is absolutely no difference between domestic violence in same sex relationships and in heterosexual relationships.

Reality

• Many of the dynamics of partner abuse are the same in same sex and heterosexual relationships. LGBT domestic violence has unique factors, however, that relate to homophobia, lesbophobia, biphobia, transphobia, and heterosexism within society. LGBT people are not afforded many basic civil rights that heterosexual people receive. As a result, there are often inadequate and insensitive supports or resources. LGBT people may fear being “outed” after disclosing partner abuse; afraid of unfair treatment by courts, police and service providers.

• Many LGBT people may be struggling with their own internalised homophobia, lesbophobia, biphobia or transphobia which increase feelings of shame and low self esteem.

• Many service providers are not adequately trained to address the special needs of LGBT clients.

• Domestic violence service providers who generally work with heterosexual survivors may have more difficulty in differentiating between the LGBT perpetrator and survivor. ACON stated:

“Domestic violence isn’t well understood in the community

There hasn’t been much information or discussion in the gay and lesbian

communities about domestic violence in our relationships. Most information on

domestic violence relates to heterosexual relationships with the man abusing

the woman. This lack of understanding means that some people may not:

• Believe it happens in same sex relationships;

• Recognise abuse as domestic violence if it does happen to them; and/or

• Know how to respond if they see domestic violence in their friend’s or family members’ relationships ...

“Services may not be well developed

Although lesbians can access most general domestic violence services, like

may have little experience in working with same sex domestic violence and

therefore, may not offer the most appropriate service. For gay men there are

currently few specific services that offer assistance or support …”

Myth

• I won’t be able to meet any other gay or lesbian people.

Reality

• One form of abuse is social isolation. Some people worry that if they leave

their abusive partner they will end up isolated and alone. This is especially true

for people in their first same sex relationship. There are many community groups that can help people make connections with other gay men or lesbians.

Myth

• Bondage and Discipline or Sadomasochism (BDSM) is about power and control. That means the submissive partner is being abused.

Reality

• BDSM is a negotiated sexual activity that may involve hitting, slapping, pain,

coercion, or dominance. Some people may adopt long term roles of dominance or

submission. These are conscious and consensual activities where all parties agree

to their roles as well as the time and place for a particular scene. In a domestic

violence situation the abused partner does not consent to the abusive activities.

Chronic Illnesses

ACON states:

In some cases of domestic violence the abusive partner is the one with the illness while in others it is the one without the illness that is abusive. Within an abusive relationship where either or both of the partners has a chronic illness many of the forms of abuse and control discussed earlier may exist. However there are a number of forms of domestic violence that are specific to relationships where either or both partners have a chronic illness.

If the abusive partner does not have a chronic illness (eg is HIV negative) they may:

• Withhold medication, treatments or access to other medical services.

• Threaten to cut off support or to leave.

• Verbally abuse their partner by saying they are ‘diseased, sick, unclean’ or other inappropriate comments about their illness, or otherwise undermine their partner’s confidence.

If the abusive partner does have a chronic illness (eg is HIV positive) they may:

• Use guilt or other psychological abuse to manipulate their partner.

• Refuse to take medication or seek medical services.

• Use their illness to manipulate services, eg saying ‘I’m weak and sick, how could I control him/her?’

• Where relevant, threaten to, or actually, infect their partner to prevent them leaving.

As sexual assault is a common form of domestic violence, sexually transmissible infections (eg HIV, Hepatitis B) pose a special risk to the uninfected partner. There are a range of support services that someone with a chronic illness may be able to contact, in addition to the Queensland Association for Healthy Communities. These include:

• A trusted doctor, nurse or other health care worker or a hospital social worker or counsellor.

• Centrelink (13 10 21).

• Illness specific support groups for information on treatments, legal rights, support services, and so on. These groups may not have experience providing support to gay men or lesbians escaping domestic violence but may be able to provide support around the specific requirements of the illness. Look in the White Pages for contact details for specific groups.

Action by service providers

Sharon Stapel again:

Consider the following suggestions for law offices and lawyers:

• Use gender-neutral terms until the client identifies the abuser’s gender (e.g. “So what is your partner’s name?” instead of “What is his name?”).

• Ask respectfully how they identify and what pronouns they prefer. Questions about a transgender client’s sexual organs, sexual-reassignment surgery status (many transgender people never have sexual reassignment surgery), hormone status or any other clearly private matter as a way to establish a client’s identity are inappropriate in all circumstances. As in any other situation, these questions are intrusive and embarrassing. If a definition of the transition process is necessary for a legal theory or remedy, practitioners should explain to the client why they are asking an admittedly personal and invasive question.

• Create intake forms that are neutral in tone. For example, instead of “Gender: F or M,” use “Gender: ________,” which allows transgender clients to self-identify. Also consider using language like “partner” instead of “boyfriend” or “husband” on written materials.

• Instead of using the phrase “battered women” — which may alienate battered gay men and transmen — use gender-neutral language like “victim” or “survivor.”

As those of us who have practised a long time in domestic violence matters, it can often be hard to identify who is and who is not the predominant perpetrator of the violence. In heterosexual relationships, given the propensity of violence by men to women, too often the lazy or ideological assumption is made that the man is the violent of the two: remember the example of Bob “Stretch” and Mary.

The usual way of properly identifying who is and who is not the predominant perpetrator of the violence is to use the method that has been used since time immemorial - test your client. Knowing what the general features are of domestic violence, see how the client sitting on the other side of the desk from you stacks up. You may have to carry out a careful investigation of what has happened to determine in your own mind as to who is the predominant perpetrator and who is the survivor.

Keys to identify a survivor of domestic violence

• self-blaming

• expressions of shame, embarrassment and fear

• minimisation of the conduct towards them, including excusing the behaviour of the abuser “ she told me that it was my fault”; “if only I had listened to her, I wouldn’t have got hurt”; “he told me that no one else loved me”

• reluctant to take action

• telling a story similar to other survivors of domestic violence

• if they have not come out, a fear of being outed

Keys to identifying a predominant perpetrator of domestic violence

• more likely to be engaged in blaming the victim: “it was all her fault”

• more likely to be minimising their conduct “I didn’t mean to hit her. It was an accident, but it was after she took a swing at me first”

• more likely to use aggressive and hostile language when talking about incidents

Tuesday, 18 May 2010

Last week I was privileged to take part in a meeting of a group of White Ribbon Ambassadors in Townsville, who debated proposed changes to Queensland's Domestic and Family Violence Protection Act.

The Domestic and Family Violence Protection Act 1989 is the Act of Parliament that not surprisingly deals with domestic and family violence. It has two parts to it: enabling people to obtain civil protection orders (usually called domestic violence orders or DVO's), and setting up a scheme for prosecuting those who breach the orders.

Currently the Queensland Government is undertaking a review of the Act and has called for public input. The purpose of the meeting was to provide that input from a disparate group of men. Aside from myself, others attending included:

President of the Australian Psychological Society, Professor Bob Montgomery

Police district domestic violence liaison officer, Sgt Mark Lance

Dr Brian Sullivan, an expert on perpetrator programs

Alan Johnson, local Aboriginal elder

It was recognised that, without trivialising or minimising violence by women to men, or that occuring in same sex relationships, domestic violence is primarily of a gendered nature, by men to women.

It was also recognised that perpetrator programs need to be made available, compulsory where necessary, properly accredited, with appropriate standards, and for longer course times, to enable them to be the most effective.

The group called for police to be able to issue on the spot orders, as has happens interstate, such as in Tasmania; provided that these are for short periods, say up to 72 hours.

The group also called for it to be mandatory for magistrates when considering making a protection order or a temporary protection order, to have to consider section 68R of the Family Law Act. This is a section that is often overlooked, which empowers State and Territory magistrates when making temporary or final protection orders to alter or freeze existing parenting orders under the Family Law Act - but only for a period of 21 days.

White Ribbon Ambassadors are men who have taken the pledge not to be violent to women, and not to condone or to be silent about violence to women. They are men seen to be leaders who can influence others in this crucial debate.

November 25 each year is the UN International Day for the Elimination of Violence Against Women, commonly known as White Ribbon Day. The white ribbon movement is a movement of men. It arose from tragic events in Canada some years ago when a man took a gun to school, released the men and boys and systemically gunned down women and girls.

The Queensland Government review is also occuring at the same time as the review by the Australian Law Reform Commission into how the Family Law Act deals with domestic violence. There will inevitably be some overlap between the two reviews, because of the overlap of the two pieces of legislation.

The Australian Attorney-General Robert McClelland has announced the government's formalised policy for the appointment of federal judges:

New transparency in judicial appointments

The impartial and competent administration of justice is fundamental to the rule of law, which underpins our democratic freedoms.

A strong and independent judiciary requires the appointment of appropriately skilled judges.

The role of the executive, in choosing who will be responsible for ensuring the administration of justice according to law, impacts directly on public confidence in the courts and their decisions.

In early 2008, the Australian Government implemented new processes for the appointment of judicial officers. These new processes aim to ensure:

• greater transparency, so that the public can have confidence that the Government is making the best possible judicial appointments

• that all appointments are based on merit, and

• that everyone who has the qualities for appointment as a judge or magistrate is fairly and properly considered.

I am pleased to say that I have received significant support and positive feedback regarding the implementation of these new processes. I have also been pleased with the support and feedback I have received for the high calibre of judicial officers selected for appointment.

The Government will continue to monitor and, if necessary, adapt processes to ensure that all suitable candidates are considered and appointments continue to be based upon merit.

Robert McClelland MP

Attorney-General

Judicial Appointments Process

The Attorney-General, as the nation’s first law officer and part of the executive branch of government, is responsible for recommending judicial appointments, to the Cabinet and the Governor-General.

Before an appointment process commences, the Attorney-General, in consultation with the courts and his Department, decides whether an appointment should be made. Vacancies may result from a judge retiring or resigning. Alternatively, an increase in workload may prompt the need for additional judicial resources in a particular court or registry.

When the decision has been made to make an appointment to a federal court, the Attorney-General consults widely, writing to interested bodies inviting nominations of suitable candidates. These bodies include, but are not limited to, the Chief Justices of the Family and Federal Courts, the Chief Federal Magistrate, the Law Council of Australia, the Australian Bar Association and their State and Territory counterparts.

At the same time, the Attorney-General’s Department places public notices in national and local media seeking expressions of interest and nominations and publishes the appointment criteria on its website.

The Attorney-General has established standing Advisory Panels to assist in assessing expressions of interest and nominations. The membership of the Advisory Panels includes the Head of the relevant court (or their nominated representative), a retired judge and a senior official from the Attorney-General’s Department.

The Attorney-General writes to the Advisory Panel requesting that they consider all expressions of interest and nominations. The Advisory Panel may interview candidates it considers suitable for appointment. The Advisory Panel subsequently presents the Attorney-General with a report that lists those candidates that it has assessed as being highly suitable for appointment.

After considering the Advisory Panel’s report, the Attorney-General writes to the Prime Minister seeking his and/or Cabinet approval. If approved by the Cabinet, the Attorney-General makes a recommendation to the Governor-General who considers the appointment through the Federal Executive Council process.

Appointments to the High Court and Heads of Court

The High Court, as the apex of Australia’s judicial system, enjoys a different status to other federal courts and therefore, a slightly different appointment process has been adopted for this Court. Similarly, appointments to the positions of Chief Justice of the Federal Court or Family Court and Chief Federal Magistrate are likely to come from the serving judiciary and would therefore already be known to government.

The Attorney-General’s Department therefore does not place notices in the newspapers or place the appointment criteria on its website. Rather, the Attorney General consults widely with interested bodies seeking nominations of suitable candidates. In addition to those bodies outlined earlier, the Attorney General also writes to:

• State Attorneys-General

• Chief Justice of the High Court

• Justices of the High Court

• State and Territory Chief Justices

The Attorney General then considers the field of highly suitable candidates and writes to the Prime Minister seeking his and/or Cabinet approval. If approved by the Cabinet, the Attorney-General makes a recommendation to the Governor-General who considers the appointment through the Federal Executive Council process.

Saturday, 8 May 2010

Earlier this week, I delivered a paper for Australia's CEO Challenge as part of Queensland's Domestic and Family Violence Prevention Month. It was entitled: Grasping the nettle: obtaining a protection order.

Here is the paper:

GRASPING THE NETTLE: OBTAINING A PROTECTION ORDER

Presentation to Australia’s CEO Challenge

4 May, 2010

1. Introduction

[1] I want to acknowledge the traditional owners of this land, the Turrbal people. One of the realities about any discussion of domestic violence in Queensland and Australia is that domestic violence rates and the nature of that violence, is much worse in Aboriginal relationships than those in relationships of the broader community.

2. Summary

[2] If there are only two things you learn today, make sure it’s these:

• Think of obtaining protection when considering a risk assessment and as part of a safety plan for your client; and

• If protection orders are contested, it may be no walk in the park to obtain an order. If the applicant does not prove the case, no protection order is made.

3. What is domestic violence?

[3] I won’t go into too much theory today, and there are many definitions of domestic or family violence. However, fairly obviously there are two criteria:

• Domestic

• Violence

[4] In general terms, domestic violence occurs in a relationship of a domestic nature, typically husband and wife or de facto partners, whereas family violence occurs in a broader family relationship, eg parent to child.

[5] The mistake that is often made is to fail to recognise abuse that is not physical, which can clearly be identified as domestic violence.

[6] A useful definition, as good as any out there, and one we need to focus on is that in section 11 of the Domestic and Family Protection Act 1989 :

“(1) Domestic violence is any of the following acts that a person commits against another person if a domestic relationship exists between the 2 persons--

(a) wilful injury;

(b) wilful damage to the other person's property;

Example of paragraph (b)--

wilfully injuring a defacto's pet

(c) intimidation or harassment of the other person;

Examples of paragraph (c)--

1 following an estranged spouse when the spouse is out in public, either by car or on foot

2 positioning oneself outside a relative's residence or place of work

3 repeatedly telephoning an ex-boyfriend at home or work without consent (whether during the day or night)

4 regularly threatening an aged parent with the withdrawal of informal care if the parent does not sign over the parent's fortnightly pension cheque

(d) indecent behaviour to the other person without consent;

(e) a threat to commit an act mentioned in paragraphs (a) to (d).

(2) The person committing the domestic violence need not personally commit the act or threaten to commit it.”

[7] I’ll come back to these elements later. However, you can see that non-violent behaviour such as harassment can constitute domestic violence.

4. History of the movement

[8] Society’s response to domestic violence arose from the inexorable rise of the women’s movement. That movement recognised and recognises that women needed to be equal with men, and that part of the problem of men’s domination of women was men’s violence to women. From this wellspring of the women’s movement, women’s and children’s shelters were founded. The first in the world, from recollection, was founded in 1972 in England. Australia was not far behind, in 1974, with the first refuge being founded in Tasmania by, amongst others Jocelyn Newman.

[9] In Queensland, I am happy to be corrected, but I understand the first women’s shelter was Women’s House , which was founded in 1975, for several years as an unfunded service.

5. Society’s response to domestic violence

[10] Aside from funding more police and women and children’s shelters, society’s prime response to domestic violence has been the ability to obtain civil protection orders.

6. Theory of domestic violence

[11] Once the sheer scale of domestic violence became clear, feminist theorists tried to work out what was happening and why.

[12] Here is a useful summary of some of the theories:

“The first theory developed in the United States was that men who battered women were mentally ill and that women who remained in violent relationships were also mentally ill. This theory proved to be wrong. The number of relationships that involved violence was much greater than original theorists guessed and psychological tests did not support the theory that violence was caused by mental illness. In fact, many batterers and their victims tested "normal" under psychological tests.

Another theory developed that men battered because they learned this behavior in their families. Although there is a statistical relationship between boys who witness their fathers battering their mothers (they are seven times more likely to batter their own wives), there is no significant statistical relationship between girls who witness battering and those who later become victims. Further, many men who witnessed violence as children do not abuse their partners as adults.

A third theory was that women suffered from a "learned helplessness" as a result of repeated battering, which prevented them from resisting the violence or leaving the relationship. This theory does not address the economic, social, and familial reasons why a woman might stay in the relationship; it is also inconsistent with the experiences of many women who actively attempt to secure their safety. Research indicates that battered women resist the abuse in many ways and engage in a variety of survival or coping strategies.

Yet a fourth theory was that batterers follow a "cycle of violence" with intermittent violent and repentant episodes. The "cycle of violence" theory did not conform to many battered women's experiences. Many women reported that their partners never repented in their violent relationships, and that violence was not cyclical but rather a constant presence in their lives.

These theories evolved into the current understanding of why violence against women happens. This understanding of how and why men batter was developed though many years of interviews with victims and batterers. According to this model, batterers use abusive and threatening behaviors to exert and maintain control and power over their victims.”

[13] There are some who still maintain that all domestic violence is that by men to women, and that all is based on the patriarchal model. It must be remembered when acting for clients that theories are well and good, and they might apply in the case of the client, but they are theories. What is happening to your client is happening in the here and now. It’s real. If there is a difference between the theory and the reality, the theory must give way.

[14] Unfortunately, the patriarchal model is a one size fits all model which does not reflect the growing realisation of when domestic violence occurs in a relationship:

• By a man to a woman

• By a woman to a man

• By a woman to another woman in a lesbian relationship

• By a man to another man in a gay relationship

• By a man or woman to a transgendered partner

[15] Unfortunately some women do commit violence to their male partners. Unfortunately, same sex domestic violence is a reality.

[16] The clear feature in all of these relationships is that there is the use of physical and/or sexual violence (or other forms of abuse), which is used as a tool by one party as a form of power to control the other.

[17] If we go back to the list contained in section 11 of the Domestic and Family Violence Protection Act, we see the shopping list of controlling behaviour:

• Wilful injury

• Wilful damage

• Harassment or intimidation

• Indecent behaviour to the other without consent

• A threat to commit any of these

• Using someone else as an agent to do these things

7. Risk assessment and safety planning

[18] It must be remembered at all times that the obtaining of a protection order, while the prime legal means of obtaining protection, is not the be all and end all of ending domestic violence, and that the prime focus must at all times be on the safety of the client and any children. To properly protect survivors of violence:

• Obtaining a protection is not an end in itself.

• Sometimes obtaining a protection order increases a client’s risk, not decreases it.

• If a protection order is to be sought, it must be part of a holistic process- to do in isolation can place the client and any children at greater risk, by giving the client a false sense of security.

• It is essential to undertake a safety plan with the client.

• But a safety plan cannot be properly undertaken without undertaking a risk assessment. If you don’t know the risk, how can you plan for safety?

[19] I’ve included in the handouts the risk assessment and safety plans that I use with my clients. Feel free to use them as you wish. Electronic copies are also available.

2. Check your own safety. Violent, controlling people don’t like being challenged and may try to stalk you or be violent to you.

8. The legal framework

[21] The starting point in considering any matter under the Domestic and Family Violence Protection Act 1999 is the report of the Queensland Domestic Violence Taskforce “Beyond these Walls” (1988). This was the report that led to the enactment of the then Domestic Violence (Family Protection) Act 1989 which is, in essence, the basis of the current legislation. The report was clear that there needed to be civil protection orders, as other parts of our legal system, such as the use of the Criminal Code, were failing women.

[22] The report writers looked for inspiration as to what to do both interstate and overseas, especially in the United States.

[23] It is useful here to mention what the purpose is of a statute like the Domestic and Family Violence Protection Act 1989:

“The purpose of the domestic abuse statute is to protect and "aid victims of domestic abuse by providing an immediate and effective" remedy. The statute provides for a wide variety and scope of available remedies designed to separate the parties and avoid future abuse. Thus, the primary goals of the statute are preventive, protective and remedial, not punitive. The legislature did not design the statute as punishment for past conduct; it was instead intended to prevent further harm to the victim.”

[24] The purpose of our Act is stated in its long title:

“An Act to provide for protection to a person against violence committed or threatened by someone else if a spousal, intimate personal, family or informal care relationship exists between the persons”.

9. Obtaining a protection order

[25] There is a different test for obtaining a final as opposed to a temporary protection order. Making a protection order of any kind is a “serious step to take” as McGill DCJ stated in DMO v RPD :

“Such an order may, for example, prohibit a person from entering, attempting to enter, or remaining in premises even though the person owns or has another legal or equitable interest in the premises, or even from approaching within a stated distance of the premises: s 25(3)(b). It can prevent a person from approaching within a stated distance of a named person, or from contacting a named person, or from locating or attempting to locate that person: s 25(3)(c), (d), (e). In addition, it can require a respondent to return property to the aggrieved, or allow an aggrieved to recover property: s 25(4). The order has serious consequences for a person who holds or wishes to hold a licence under the Weapons Act. It may prohibit a person from possessing a thing, possession of which would otherwise be lawful: s 26. A breach of a protection order is a criminal offence if the respondent was present when the order was made, or was served with a copy of the order, or was told about it by a police officer, and is potentially punishable by a term of imprisonment; it is not uncommon for terms of imprisonment to be imposed. In these circumstances making such an order is plainly a serious matter, so that one would expect the rules of procedural fairness to apply.”

9.1. Obtaining a final protection order

[26] Three things need to be shown:

1. There is the right type of relationship.

2. Acts of domestic violence have happened.

3. Further acts of domestic violence are likely.

[27] Domestic violence towards a named person is not a basis for obtaining a protection order. However, if there are named persons to be added then associated domestic violence must have been either committed or is likely to be committed against those named persons . The test is therefore different to that for showing the basis of an order.

9.2 Step 1: Right type of relationship

[28] The relationship has to be a “domestic relationship”. It needs to be:

• Spousal relationship

• Intimate personal relationship

• Family relationship

• Informal care relationship

[29] If the parties do not have the right type of relationship, then a protection order, of any kind, cannot be made.

Example A

Mary married Bob. They later divorced. Mary married John. Bob has been abusive to John. John asks for a protection order against Bob. He cannot obtain one as they do not have the right type of relationship.

9.3 Spousal relationship

[30] This is defined in section 12 as:

• Between spouses! To see the definition of spouse, the definition section of the Act, section 3 says to go to the dictionary. The dictionary says to go to section 12(2) and (3). Essentially a spousal relationship is either for married couples or de facto couples, the latter including both opposite and same sex couples. Section 32DA of the Acts Interpretation Act 1954 defines “de facto couple” using the key concept of genuine domestic basis:

“ (1) In an Act, a reference to a de facto partner is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.

(2) In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances--

(a) the nature and extent of their common residence;

(b) the length of their relationship;

(c) whether or not a sexual relationship exists or existed;

(d) the degree of financial dependence or interdependence, and any arrangement for financial support;

(e) their ownership, use and acquisition of property;

(f) the degree of mutual commitment to a shared life, including the care and support of each other;

(g) the care and support of children;

(h) the performance of household tasks;

(i) the reputation and public aspects of their relationship.

(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis.

(4) Two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.

(5) For subsection (1)--

(a) the gender of the persons is not relevant; and

(b) a person is related by family to another person if the person and the other person would be within a prohibited relationship within the meaning of the Marriage Act 1961 (Cwlth), section 23B, if they were parties to a marriage to which that section applies.

(6) In an Act enacted before the commencement of this section, a reference to a spouse includes a reference to a de facto partner as defined in this section unless the Act expressly provides to the contrary.”

• Between former spouses

• Between the biological parents of a child. The use of “biological” is important. It would include those, such as sperm donors, who would not be recognised in law as parents.

9.4 Intimate Personal Relationship

[31] When the last major review of the Act was undertaken in 2002, it was recognised that dating violence needed to be tackled, hence this category. However, a dating relationship is not required for this category. Merely because the parties have dated does not mean that they have an intimate personal relationship. Nor do they need to have been intimate. The concept applies whether the parties are the opposite or the same sex.

[32] The key concept is that of enmeshment. “Enmeshment” is not defined in the Act. The Macquarie Dictionary, 3rd ed. defines “enmesh” as:

“(1) An intimate personal relationship exists between 2 persons if the persons are or were engaged to be married to each other, including a betrothal under cultural or religious tradition.

(2) Also, an intimate personal relationship exists between 2 persons, whether or not the relationship involves or involved a relationship of a sexual nature, if--

(a) the persons date or dated each other; and

(b) their lives are or were enmeshed to the extent that the actions of 1 of them affect or affected the actions or life of the other.

(3) In deciding whether an intimate personal relationship exists under subsection (2), a court may have regard to the following--

(a) the circumstances of the relationship, including, for example, trust and commitment;

(b) the length of time for which the relationship has existed or did exist;

(c) the frequency of contact between the persons;

(d) the level of intimacy between the persons.

(4) An intimate personal relationship may exist whether the 2 persons are the same or the opposite sex.

(5) The lives of 2 persons are not enmeshed merely because the persons date or dated each other on a number of occasions.”

9.5 Family relationship

[34] This is defined in section 12B .

[35] Some key concepts:

• Relative is not limited by the ordinary concepts. It can have wider application, for example in ATSI relationships.

• However, for most people, an in-law may not be an in-law if the “relative” is a family member of the person’s de facto or ex-de facto partner.

• Children under 18 cannot obtain a protection order against their parents nor vice versa.

Section 12B enables an in-law through a de facto relationship to be considered to be a “relative”. However, I have been told by other lawyers that magistrates are generally only applying the concept of “relative’ when there is a marriage, as opposed to a de facto relationship.

History

[36] This section was inserted in the last major review to include reference to senior abuse.

[37] Section 12B provides:

“(1) A family relationship exists between 2 persons if 1 of them is the relative of the other.

(2) A relative, of a person, is someone who is ordinarily understood to be or to have been connected to the person by blood or marriage.

(3) For deciding if someone is related by marriage, any 2 persons who are or were spouses of each other are considered to be or to have been married to each other.

(4) A relative of a person (the relevant person) is also either of the following persons if it is or was reasonable to regard the person as a relative especially considering that for some people the concept of a relative may be wider than is ordinarily understood--

(a) a person whom the relevant person regards or regarded as a relative;

(b) a person who regards or regarded himself or herself as a relative of the relevant person.

Examples of people who may have a wider concept of a relative--

1 Aboriginal people

2 Torres Strait Islanders

3 members of certain communities with non-English speaking backgrounds

4 people with particular religious beliefs

(5) In deciding if a person is a relative of someone else--

(a) a subsection of this section must not be used to limit another subsection of this section; and

(b) each subsection is to have effect even though, as a result, a person may be considered to be a relative who would not ordinarily be understood to be a relative.”

9.6 Informal care relationship

[38] Key concepts:

• A carer providing personal care activity

• The care is required due to disability, illness or impairment

• In general terms, no fee is paid.

[39] This concept was inserted during the last major review of the Act largely due to lobbying of what is now the Queensland Association of Healthy Communities , due to concerns expressed by HIV/AIDS patients of being abused by their volunteer carers. It also fitted neatly with senior abuse.

[40] This relationship is defined in section 12C :

“(1) An informal care relationship exists between 2 persons if a person is or was dependent on another person (a carer) who helps the person in an activity of daily living (personal care activity).

Examples of personal care activities a carer may perform--

1 dressing or other personal grooming of the person

2 preparing the person's meals or helping the person with eating meals

3 shopping for the person's groceries

4 telephoning a specialist to make a medical appointment for the person

(2) The personal care activity must be required, or have been required, because of a disability, illness or impairment relating to the person.

(3) A relationship in which the personal care activity is or was provided under an arrangement the person entered into with someone other than the carer is not an informal care relationship, whether or not a fee is or was paid for the care.

Example for subsection (3)--

The relationship between a person and a nurse who visits the person each day to help with bathing and physiotherapy is not an informal care relationship if the nurse visits under an arrangement between the person and a community based in-home care entity.

(4) If the person entered into an arrangement with the carer and a fee is or was paid, or is to be paid, to or at the discretion of the carer under the arrangement for the personal care activity, the relationship existing between the persons is not an informal care relationship unless it is alleged that the circumstances relating to the arrangement or fee include an act mentioned in section 11(1)(a) to (e).

Example for subsection (4)--

The relationship that exists between a person and the person's carer is an informal care relationship if the carer demanded the proceeds of the person's pension or superannuation cheque and threatened to injure the person unless the proceeds were paid.

(5) However, an informal care relationship can not exist between a child and a parent of the child.

(6) In this section--

fee does not include--

(a) a pension or allowance in the carer's own name from the Commonwealth Government for providing care to a person; or

(b) an amount of money paid to a carer for goods purchased for the person that does not exceed the purchase price of the goods.

Example of paragraph (b)--

A friend of a person who has had a stroke may call on the person at the person's home every second day and bring fresh milk and bread and be given the price of the items.

parent, of a child, see Child Protection Act 1999, section 11.”

9.7 Overlap

[41] It is possible for various relationships to overlap. The key concept is that if you have a spousal relationship, rely on that. If you are in doubt about a spousal relationship, then also rely on one or more of the other.

Example B

Bill and Catherine dated. They lived together for 2 weeks. Bill has a minor disability. Catherine is an occupational therapist. Catherine has helped Bill, using her skills as an occupational therapist. Sometimes Bill has paid Catherine for her help.

It is unlikely that Bill and Catherine would have been in a spousal relationship, nor informal care relationship, but it appears clearly that they were enmeshed, and would have been in an intimate personal relationship.

9.8 Step 2: acts of domestic violence

[42] To recap:

• Wilful injury

• Wilful damage

• Harassment or intimidation

• Indecent behaviour to the other person without consent

• A threat to commit any of these

• Using someone else as an agent to do these things

9.9 Wilful injury

[43] Key concepts:

• Wilful

• Injury

[44] The fact that a party might have been hit does not of itself mean that there has been “wilful injury”. If an aggrieved has been hurt purely by accident, then the injury is not wilful. If an aggrieved is hit by the respondent, but is not hurt, then there is no injury.

[45] It is clear that this behaviour may fall within other categories. It may be:

• Harassment

• Intimidation

• Indecent act without consent

• Threat to injure

[46] Although “wilful” is not defined in the Act, its concept is well known to lawyers and magistrates. The Court of Criminal Appeal stated in 1980 in relation to wilful damage that it involved:

“That the accused deliberately did an act (that is, that it was a willed act) aware at the time he did it, that the result charged in the indictment was a likely consequence of his act, and that he recklessly did the act regardless of the risk; where applicable it embraces actual intent.”

9.10 Wilful damage

[47] Key concepts:

• Wilful

• Damage

[48] If you don’t have damage, then this cannot apply. A phone that was smashed by being thrown across the room or was deliberately dropped into a pool are both examples of wilful damage. A phone that was damaged by being dropped by accident into a pool, unless the damage can be shown to be a “likely consequence” is not wilful damage.

9.11 Harassment

[49] There is no definition in the Act. This concept involves ordinary and garden concepts of harassment. The Macquarie Dictionary 3rd ed. defines “harass” as:

“1. To trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. to disturb persistently; torment, as with c\troubles, cares, etc.”

[50] Couples yell at each other from time to time. This may not constitute domestic violence. Contact, of itself, may or may not amount to harassment or intimidation.

[51] If an aggrieved is seen as overly sensitive then he or she may not be able to prove this ground.

[52] If the sole basis of the application is verbal abuse or related financial abuse, it may be extremely difficult to obtain an order, as magistrates can be quite sceptical of allegations about non-physical violence by itself.

9.12 Intimidation

[53] This is not defined. Again, the garden or dictionary definitions are to be used. Irwin DCJ held last year :

“[Citing an earlier case of Bottom v Rogers]:

‘Intimidation refers to a process where the person is made fearful or overawed, particularly with a view to influencing that person’s conduct or behaviour.’

I add that my interpretation of this is that the person who was alleged to have engaged in the intimidation, or harassment for that matter, must have engaged in the conduct for the purpose of influencing the other person's behaviour. I refer to the examples in the Act which all involve an element of deliberateness and the decision of Dowse -v- Gorringe . There can be a single incident of conduct which amounts to intimidation. Regard must be had to the subjective state of mind of the person alleged to have been intimated.

As was said in Dowse -v- Gorringe, something which does not in fact intimidate could not amount to intimidation. Harassment, on the other hand, involves a repeated or persistent form of conduct which is annoying or distressing, rather than something that would incite fear. In either case, the matter needs to be of some significance to qualify as domestic violence , bearing in mind the other elements of the definition and the examples that are given for paragraph (c) of section 11(1) of the Act.”

[53A] The Macquarie 3rd ed. defines “intimidate” as:

“1. to make timid, or to inspire with fear; overawe; cow 2. to force into or to deter from some action by inducing fear: to intimidate a voter.”

[53B] Clare SC DCJ stated in M v Gray (2010) :

“Intimidation imports some form of deliberate pressure from the person intimidating the victim. Intimidation does not need to be overt. A superficially kind approach may still import menace. Each case must be assessed on its own circumstances. No doubt there are many cases where even a single call would amount to intimidation.”

Example C

Bob and Mary are married. One night Bob holds a shotgun to himself in front of Mary saying that he will kill himself. Because Bob has not threatened Mary, and has only threatened himself, he has not committed an act of intimidation. However, the act would constitute harassment even though it happened only once.

9.13 Indecent behaviour to the other person without consent

[54] Key concept: without consent.

[55] I have lost count of the number of matters where the woman has not raised in the protection order application that she was sexually assaulted because she or the person interviewing her felt uncomfortable talking about the issue. In the process her credibility became even more the central issue, which could harm her both in these proceedings but also those in the Family or Federal Magistrates Courts. This concept does not need actual touching. It could also cover behaviour that might be harassment, for example:

• taking an indecent photograph of the other without consent;

• posting that photo online.

9.14 Threat to commit act

[56] A general threat is not enough. It must be a threat to do something, i.e. to commit one of the forms of domestic violence.

Example D

Andrew and Gwen are in a de facto relationship. Andrew insists every day that Gwen wear only that lingerie that he has laid out on the bed. She is not allowed to wear any other. That behaviour would constitute harassment.

One morning they had an argument. Gwen refused to wear the lingerie, and told Andrew that. He was unhappy about this, started yelling at her. He yelled: “If you don’t put that underwear on, I’m going to shove you outside!” Gwen said: “Don’t you dare!” Andrew grabbed Gwen out of the shower and carried her out the front door, still naked.

A week later, Andrew says that if Gwen does not do what he tells her, he will shove her outside naked again.

Andrew’s behaviour on the morning may have constituted harassment or intimidation, and a threat to carry out an act of domestic violence (ie harassment, intimidation, indecent behaviour without consent or wilful injury- the threat being to “shove you outside”), but it would also have been an indecent act to Gwen’s without her consent (carrying her outside when she was naked).

Andrew’s behaviour a week later constituted a threat, which was likely to be carried out as he had done just that the week before.

9.14 Step 3: Further acts are likely/threat likely to be carried out

[57] The same types of acts are not required to be proved again. It doesn’t have to be proved, for example, that because the domestic violence that occurred was wilful injury that the future acts of domestic violence must be wilful injury. What is required to be proved is that, on the balance of probabilities, that there is a real or serious risk of further acts of domestic violence of some kind.

There are long discussions by each of Bowen CJ and Deane J as to what “likely” means. Bowen CJ said :-

“The word “likely” is one which has various shades of meaning. It may mean “probable” in the sense of “more probable than not” – more than a fifty per cent chance”. It may mean “material risk” as seen by a reasonable man “such as might happen”. It may mean “some possibility” – more than a remote or bare chance or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified.”

[59] Deane J said :

“The word “likely” can, in some context, mean “probably” in the sense in which that word is commonly used by lawyers and laymen, that is to say, more likely than not or more than a fifty per cent chance … It can also, in an appropriate context, refer to a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to “prone”, “with a propensity” or “liable”. When so used, it is sometimes equated with the concept of foreseeability in the law of negligence … Thus, if I fire a rifle through drawn curtains into a quiet lane in the country village, it is not likely, in the sense of more likely than not or an odds on chance, that I will injure anyone. It would, however, be difficult to deny that there was a real chance or possibility (or likelihood in that sense) that an occasional passerby would be wounded by the bullet. Plainly, the act of firing a rifle through drawn curtains into a lane used by pedestrians would be an act which was, in the circumstances, prone or liable (likely in that sense) to cause injury to a passing pedestrian.”

[60] In Schmidt v Schmidt, McGill DCJ refers to Tillmans Butcheries saying that “likely” can in different contexts carry various meanings.

[61] In McLennan v McLennan [2003], McGill DCJ held :

“ ‘Likely’ in my view does not in the statute mean more probable than not, but it must at least, involve a real, not remote likelihood, something more probable than a mere chance or risk. The magistrate has also expressed himself in terms of the possibility of the recurrence of the particular domestic violence which had occurred in the past; in my opinion the statute is not so limited, and what has to be established is that the respondent spouse is likely to commit an act, that is any act, of domestic violence in the future. The magistrate ought to have been considering whether the evidence indicated that there was some real, significant likelihood that the respondent would commit an act of domestic violence in the future.”(emphasis added)

[62] The test for threats is slightly different: the test is that the threat is likely to be carried out.

[62A] Don’t assume that just because the parties are still warring about kids and property in the Family Court that this is a basis of showing further acts are likely. In W v D (2008) , for example, a protection order should not have been made as it was found that the relationship between the parties prior to physical separation was poisonous, but there were no acts of domestic violence post- leaving, and further acts were not likely.

9.15 Temporary Orders

[63] Key concepts:

• The test for obtaining a temporary protection order is lower than that of a final order.

• The test for obtaining an ex parte temporary protection order needs to show immediacy of risk to the body of the aggrieved or to his/her property.

[64] Section 39A provides:

“Act of domestic violence necessary before particular temporary protection order is made –

(1) A court may make a temporary protection order against a respondent under this division, other than section 39D, only if it appears to the court, on application for a protection order, that an act of domestic violence has been committed against the aggrieved by the respondent.

(2) A temporary protection order under this division need only be supported by evidence the court considers sufficient and appropriate having regard to the temporary nature of the order.” (emphasis added)

[65] Therefore the burden of proof to obtain a temporary protection order is less than for a final protection order as it is not necessary to show that further acts of domestic violence are likely or if threats if a threat is likely to be carried out (as would otherwise be required under section 20(1).

[66] At the time of seeking a temporary order, if there is an issue involving contact with children, consideration should be given as to whether section 68S of the Family Law Act ought apply.

[67] The ability to obtain urgent orders is contained under section 39D on an ex parte basis if, in section 39D(c) it appears to the court:

(i) “that the aggrieved or a named person is in danger of personal injury; or

(ii) property of the aggrieved or a named person is in danger of substantial damage.” (emphasis added)

[68] Temporary protection orders may be refused to a cross applicant under section 39E. The key concept is contained in section 39E(1)(c) where the cross application must be served at least one business day before the day of the hearing of the original application or may well be adjourned : section 39E(2). Magistrates have different views of what constitutes one business day. Some are of the view that it is one clear day. If the hearing were on the Monday, then this would be the previous Thursday.

[69] Magistrates have differing views as to what is a “hearing” in this section- some view it as only the trial, whereas others include any mention. This can have a significant difference.

10 Conditions

[70] Assume that you have persuaded the Magistrate to make an order, the key to the effectiveness to that order will be its terms.

[71] Key concepts:

• The magistrate can make orders of unlimited scope and power.

• The terms of any special conditions must be both “necessary” and “desirable”.

[72] Section 17 provides :

“What are the conditions of a domestic violence order?

If a court makes a domestic violence order:

(a) the respondent must be of good behaviour and must not commit acts of domestic violence or associated domestic violence; and

(b) the respondent must comply with any other conditions imposed by the court and stated in the order.”

[73] Section 22 provides :

“Protection order must include standard condition to be of good behaviour etc.

“In making a domestic violence order, the court must impose a condition that the respondent :

(a) be of good behaviour towards the aggrieved and not commit domestic violence; and

(b) be of good behaviour towards a named person in the order and not commit an act of associated domestic violence against the person.”

[74] There seems to be a misconception that the orders need to be of a prohibitive nature i.e. to stop people doing things. Whilst this would ordinarily be the case, it is clear, from considering ouster orders later, or for the return of property that conditions may well be of a mandatory nature i.e. require the respondent to do positive things.

11 Other Conditions

[75] Section 25 allows the court to impose other conditions. The key provision is section 25(2):

“When a court makes or varies a domestic violence order, it may also impose conditions on the respondent that the court considers :

(a) necessary in the circumstances; and

(b) desirable in the interests of the aggrieved, any named person and the respondent.” (emphasis added)

[76] The key phrases therefore in the making of any condition other than the standard conditions is whether that condition is “necessary” and “desirable”: cf. Collin v Collin [2004].

[76] There may be circumstances where it is desirable to have a particular condition, but it is not necessary.

[77] It is submitted that in considering the word “necessary”, regard must be had to the purpose of the act namely set out in the long title “an act to provide for protection to a person against violence committed or threatened by someone else if a spousal, intimate, personal, family or informal care relationship exists between the persons”. Reference might also be had to “Beyond these Walls” :

“In recognition of the diverse range of behaviours that are likely to be the subject of applications under the Domestic Violence Family Protection Act it is necessary for the court to have the power to impose such restrictions or prohibitions on a respondent’s behaviour as appear necessary to the court. Without limiting the discretion of a court, we believe protection orders could do all or any of the following [and there is a list of matters that might apply].” (emphasis added)

[78] Section 25(3) sets out examples of conditions that the court may impose. The court can make any order it feels appropriate, provided it is necessary and desirable. Sometimes those appearing in court and magistrates forget this. The potential power contained in section 25 is enormous. This explains part of the reason that magistrates are reluctant to use all of it.

[79] In making any further conditions, section 25(5) provides :-

“The following matters are to be of paramount importance to the court when it imposes conditions on the respondent –

(a) the need to protect the aggrieved and any named persons;

(b) the welfare of the child of the aggrieved.”

[80] Section 25(6) provides :-

“The court may also consider:-

(a) the accommodation needs of all persons affected by the proceedings; and

(b) the orders effect on a child of the aggrieved; and

(c) existing orders relating to guardianship or custody of, or access to, a child of the aggrieved.” (emphasis added)

[81] Section 46C provides :

“Court to consider relevant family contact order etc.

(1) Before deciding about making, revoking or varying a domestic violence order, the court must –

(a) consider whether contact between the aggrieved, or between the respondent, and any child of either of those persons is relevant to making, revoking or varying the order; and

(b) having regard to any relevant family contact order, or pending application for a relevant family contact order, of which the court has been informed.

(2) However, a domestic violence order or revocation or variation of an order, is not invalid merely because the court does not comply with sub-section 1.”

[82] There is an obligation upon the applicant to disclose the existence of the family contact order or an application for a family contact order: section 46B. Failure to do so could be fatal to the application for a protection order.

[83] The examples given under section 25(3) for the types of conditions that can be made are:

(a) “prohibiting stated behaviour of the respondent that would constitute an act of domestic violence against the aggrieved or an act of associated domestic violence against a named person; and

(b) prohibiting the respondent from doing all or any of the following in relation to stated premises even though the respondent has a legal or equitable interest in the premises –

(i) remaining at the premises;

(ii) entering or attempting to enter the premises;

(iii) approaching within a stated distance of the premises; and

(c) prohibiting the respondent from approaching, or attempting to approach, the aggrieved or a named person, including stating in the order a distance within which an approach is prohibited; and

(d) prohibiting the respondent from contacting, attempting to contact or asking someone else to contact the aggrieved or a named person, including, for example, if the aggrieved or named person has taken shelter at a refuge; and

(e) prohibiting the respondent from locating, attempting to locate or asking someone else to locate the aggrieved or a named person if the aggrieved’s or named persons’ whereabouts are not known to the respondent; and

(f) prohibiting stated conduct of the respondent towards a child of the aggrieved, including prohibiting the respondent’s presence at or in a place associated with the child.”

[84] Section 25(4) provides :

“In relation to property of the aggrieved, a condition may require the respondent –

(a) to return the property to the aggrieved; or

(b) to allow the aggrieved access to the property; or

(c) to allow the aggrieved to recover the property; or

(d) to do any act necessary or desirable to facilitate action mentioned in paragraphs (a) to (c).”

[85] Section 25(7) provides:

“A condition in an order that prohibits a respondent from asking someone else to contact or to locate an aggrieved or a named person does not prohibit the respondent asking –

(a) someone who is a lawyer to contact the aggrieved or named person; or

(b) someone else, including a lawyer, to locate the aggrieved or named person for a purpose authorised by an Act.” (emphasis added)

[86] The orders that are able to be made are limited only by imagination.

12 Ouster Orders

[87] These are provided under section 25A and can include premises where the parties currently live together: section 25A(2)(a) .

[88] The court must consider allowing the respondent to remove property: section 25A(3)(b) and may of necessity be able to be made ex parte : section 39D.

[89] The court must specify a time for return or removal: section 25(4) and the court must consider the role of police: section 25(5).

[90] It is usually a lot cheaper, quicker and more convenient to obtain an ouster order under this Act than an order for sole use and occupation under the Family Law Act. Some Magistrates are reluctant to exercise the power the hold if they consider that the dispute is really about children or is really about property settlement. It is usually easier to obtain an ouster order if the person seeking it is the sole registered owner of the property. Conversely, it is usually harder to obtain when the person seeking the order is not the registered owner.

Example E

The aggrieved, Francine, resides in Charleville. On separating, the respondent, Johnno, left Charleville and moved to Dalby. Johnno has been stalking the aggrieved including by SMS and mobile phone calls, up to 30 times a day and in order to pester Francine has also contacted repeatedly most of the business owners in Charleville, including hotels, motels, shops and service stations. Johnno makes threats to come to Charleville.

Francine has a standard order. She makes application for variation.

Possible conditions she could apply for:

• prohibiting the respondent from contacting, attempting to contact or asking someone else to contact the aggrieved or any person in Charleville.

• prohibiting the respondent from approaching, attempting to approach, the aggrieved including coming within 100 metres of the aggrieved (this is on the basis the aggrieved might, for example, go to Brisbane for court).

• the respondent not to approach within 10 kilometres of the Charleville post office.

Obviously if a cordon sanitaire is thrown around Charleville and Johnno attends within that zone, then that in itself is a breach of the order for which he can be arrested.

Example F

The husband, Guy had been violent to his wife, Carol. He has a drug problem. Amongst his threats, Guy threatens to have Carol’s car repossessed. The car is owned by Which Bank and leased to XYZ Pty Ltd, of which Guy is sole director and shareholder. There is no family trust. The car is known as Carol’s car – she has been the sole person driving it since it was bought and is her sole means of transport. She drives the kids to and from school in it. Carol uses it to drive to and from work. To have it repossessed would cause her great hardship. What conditions can be obtained regarding the car, if any?

Possible Conditions:

• prohibiting Guy from taking possession or attempting to take possession of the car.

• prohibiting Guy from advising, counselling or procuring any other person, including Which Bank, its servants and agents to take possession of the car.

• requiring Guy to cause XYZ Pty Ltd to make lease payments to Which Bank for the car.

Example G

Steven was sitting in an alcove outside the courtroom, waiting for his trial to continue. He was subject to a bail condition not to contact his former partner or their child. The former partner and the child then sat down opposite him in the alcove. No one else was there. The former partner asked when:

“She would be required in court and [Steven] replied that she should wait until the prosecutor arrived and someone would show her in. Thereafter the police prosecutor arrived and [Steven] left the alcove and walked into the court room.”

Steven was subsequently acquitted of breaching the no-contact clause of his bail.

13 Variation/Revocation

[91] An application for variation of a protection order or a temporary protection order is brought under sections 35 & 51. Subsections 35(1) and (2) provide :

(1) “A court may vary a domestic violence order -

(a) including the conditions imposed by the domestic violence order under Section 25 or 26; or

(b) the period for which the domestic violence order continues in force.

(2) The application for a variation must be made while the domestic violence order is in force.” (emphasis added).

[92] An application for revocation is brought under sections 36 and 51.

[93] By section 51(2) the application may be made by :

“(a) the aggrieved; or

(b) the respondent; or

(c) an authorised person; or

(d) a police officer who reasonably believes that it is for the benefit of the aggrieved and there is sufficient reason for taking the action.”

[94] Service must be effected on the aggrieved or respondent and given to the Commissioner: sections 37, 51(4), 51(4A). This may mean that you double up the efforts of the court which might ordinarily give the documents to the police. There is nothing worse for a person seeking a revocation to have it rejected by the court because of the failure to serve the Commissioner.

[95] Failure to give to the Commissioner may mean that there is no revocation or variation order made: section 37.

[98] Before varying, the court needs to consider the grounds set out in the application for the protection order and findings of the court that made the domestic violence order: s. 35(4).

13.2 Revocation

[99] Key points:

• Before revoking the order the court must be satisfied that the safety of the aggrieved or a named person would not be compromised: s. 36(3).

• Taking into account the express wishes of the aggrieved: s. 36(2)(a).

• The current contact between the aggrieved and the respondent: s. 36(2)(b).

• Any pressure or threat to the aggrieved by the respondent or someone else for the respondent: s. 36(2)(c).

• Any other relevant matter: s. 36(2)(d).

• The court may vary instead to protect the aggrieved or a named person, instead of revoking: s.36(4).

13.3 Restrictions on revocation or variation

[100] Section 17A, which was inserted by the 1999 amendments, provides :

“What happens if circumstances change after domestic violence order is made?

If circumstances change after a domestic violence order is made, a person may, under Section 51, apply for a variation or revocation of the order. Example of change of circumstances –

A temporary protection order is made because of an application by a police officer under Section 54. The aggrieved’s place of residence is stated in the order as premises that the respondent is prohibited, by the order, from approaching within a stated distance of. If the aggrieved changes his or her place of residence, a variation of the temporary protection order may be sought under Section 51.”

[102] On 6 December 1994, Ms Nolan (the aggrieved) obtained against Mr Wade (the respondent) a protection order. That order was made by consent.

[103] Two weeks later on 20 December 1994, Mr Wade applied for revocation of that order for the reason that “no domestic violence had occurred ….” It was also an application for variation of the existing order.

[104] Three weeks later on 5 January 1995, the aggrieved sought to vary the existing order by adding additional conditions.

[105] Two months later on 14 March 1995, Mr Wade sought a protection order in his favour.

[106] All three applications came on for hearing. Mr Wade was unsuccessful in both of his applications and Ms Nolan was successful in hers. Mr Wade lodged and subsequently withdrew appeals against those three decisions.

[107] One week later, Mr Wade again applied for revocation and variation of the earlier order. On the first mention of that application the Magistrate noted on the file “the applicant desires to revoke an order to which he consented. He also wishes to vary an order to change variations made … on 24.3.95. He admits there was a full hearing on that date. He now wishes to recanvass those issue(sic) …. adjourned to enable issue of res judicata to be fully canvassed.”

[108] The Magistrate hearing this new application considered that an application to revoke made a week after refusal of an earlier application for revocation was misconceived, mischievous and a “technical form of harassment”. He dismissed the application.

[109] He considered that insofar as the application was one for cancellation of certain conditions, it was “just a rehash of matters which have been canvassed previously.”

[110] Not satisfied with that, Mr Wade appealed to the District Court.

[111] Wylie DCJ held :

“It is now too late for the appellant to complain of the absence of any evidentiary basis for the orders of December 6, 1994 and March 24, 1995. Firstly, this is because, the orders not having been set aside on appeal therefrom, they must now be regarded as conclusive determinations of the issues raised by those applications. This would be so even if the appellant had not, in any respect, consented to the whole or any part of those orders. He is bound by the state of affairs established by those earlier orders (estoppel by res judicata) and he is bound by the findings as to the grounds on which those orders were based (issue estoppel). If he were not, the matters involved could be relitigated by himself and the present respondent time and time again. The principles which underlie such estoppels are expressed in Latin maxims : interest rei publicae ut sit finis litium (it is in the public interest that there should be an end to litigation) and nemo debet bis uexari pro edam causa (no one should be harassed twice for the same cause).

I must therefore approach this appeal on the basis that the earlier orders represented a judicial determination of the issues of fact and law and dispose of those issues once and for all and that the appellant cannot raise for redetermination the very same issue. …… this leaves a “respondent spouse” with limited options when a protection order has been made :

(i) await expiration of the order in the meantime complying with its terms;

(ii) when appropriate, apply for a variation or cancellation of a condition;

(iii) when appropriate, apply for revocation of the order.

The Act says nothing as to the circumstances in which application for a variation of a domestic violence order may be made which is relevant to this matter. There are, however, conditions contained in the Act which suggest that there should have been some alteration to the factual circumstances which existed when the order was first made or when it was previously varied …. I can find nothing which demonstrates that an application for variation of any condition of a protection order should be the occasion for a fresh hearing as to the necessity for such condition as if the original hearing had not taken place. When an application for variation of any condition (not being a mandatory standard condition …) the application for variation has to establish that there has been such a change in circumstances as to justify the variation sought … consequently consistently with [the object of the Act], I hold that, before a protection order is revoked, there should be evidence of such an improvement in the conduct of the person subject to the order that the court hearing the application is satisfied that the aggrieved spouse and associated person no longer need the protection ordered by the order.

What I have said in the preceding paragraphs is not intended to affect such circumstances as a giving of consent to revocation or variation or proof of death of the benefited spouse or person so that continuance of protection has become unnecessary.”

[112] His Honour went on to consider that the applications made by Mr Wade were that -

“what they seek to litigate are the same issues going to revocation of the original protection order, to variation or cancellation of the discretionary conditions of the original order, and of the need to protect associated persons. I …. am satisfied that nothing was said to suggest that a new and different issue was being raised by the appellant’s latest applications.”

“It is no answer for the appellant to refer to the bare words of s.51 of the Act which authorised the respondent spouse to apply to a Magistrates Court for revocation of the domestic violence order or for a variation of the conditions of such an order. That “right” requires that the application will be in appropriate form as to its setting out and contents and, on filing, will be served in accordance with the requirement of the Act. But that is not the end of the matter. Clear words must appear in an Act of parliament if it is to be held to abrogate ordinary rules of law. The principles to which I referred …. above are part of the common law. I consider that there is nothing in the Act which works to deny operation to those principles when an application has been made for revocation or variation of a protection order which is in force. Indeed s.84(1) reinforces in my view, those principles because it provides that, in any proceeding with a view to giving effect to any provision of the Act, a copy of a protection order or a copy of an order varying the prohibitions and restrictions imposed by a protection order shall be evidence and, in the absence of contrary evidence, conclusive evidence of ‘the making of the order and of the matters contained therein’.

“So the stipendiary magistrate had to accept that the order had been made on December 6, 1994 and varied on March 24, 1995 and could not explore the circumstances which led to the making of the order and then its variation.”

[113] Unfortunately, when parliament inserted section 17A it made no specific reference to Wade v Nolan. However, a somewhat different view to Wade v Nolan was taken by McGill DCJ in Schmidt v Schmidt .

[114] This was a matter in which there had been a series of applications and appeals to the District Court. His Honour stated :

“Even if there was a full hearing of an application for revocation, that would not necessarily (or perhaps even usually) involve a reconsideration of the issues which led to the making of the original domestic violence order. Because revocation only operates for the future, the issue on an application to revoke a domestic violence order is not necessarily whether the order was properly made in the first place, but will be rather whether it is necessary or appropriate for it to continue to operate. In other words, is there a continuing risk of domestic violence to the aggrieved spouse, or some continuing need for protection in the form of an order? It would be open on an application for revocation to assert that the domestic violence was not appropriate because there had never been any domestic violence so that the requirement of s.20(1)(a) was never met, although such an application should not be used simply as a mean of reopening or rearguing questions which had been resolved already by a proper hearing.”

[115] At [25] :

“Whether an application for revocation should include a consideration of whether the order should originally have been made will depend on the particular circumstances of the case; for example, if the order was made in the absence of the respondent spouse, and an application was made for revocation as soon as the order came to the attention of that spouse, it would be appropriate to consider whether the order ought ever to have been made. But if there has been a proper hearing on the first occasion, then an application for revocation should not be simply an opportunity to reagitate issues which were properly before the court and properly determined on the first occasion.”

14 Particulars

[116] There is an entitlement to have orders for particulars to be made. I have found that spurious cross applications often lack particularisation. Obtaining particulars of these is often of great assistance to subsequently having these withdrawn or dismissed.

[117] The proceedings are not under the Uniform Civil Procedure Rules but are as if the Justices Act applies: s.38(2). (cf: Edwards v Edwards (1999)) .

[118] There is clear authority for an order for particulars to be made in cases involving summary prosecutions under the Justices Act or its equivalent. The point of making an order for particulars was set out by Douglas J in Hassett v Pauls Ice Cream and Milk Ltd : ex parte Pauls Ice Cream and Milk Ltd :

“It would have been appropriate for the stipendiary magistrate to consider the dismissal of the complaint if he had ordered particulars, and they had not been forthcoming. That is not the case here … It may be that the complainant will not be able to furnish all of the particulars ordered. If that is so the complainant must of course furnish the fullest possible particulars and it will be a question for the magistrate to determine whether the particulars actually furnished are sufficient.”

15 Onus of proof

[119] The onus of proof is on the balance of probabilities: section 9.

[120] The onus is always on the applicant. It is not up to the respondent to show that there is no basis for the making of an order. If the applicant fails to discharge the burden of proof, then no order will be made.

16 Tips for evidence

[121] The rules of evidence may not apply and the magistrate may inform himself or herself as he or she sees fit: section 84 : Grainger v Grainger . There is a basic requirement, however, that in doing so the magistrate applies rules of natural justice .

As McGill DCJ stated in DMO v RPD (2009) :

“Provisions of this nature are familiar, and they do not exclude an obligation to accord procedural fairness. Nor do they have the effect that an order can be made without any proper basis; the position is simply that the formal rules of evidence do not apply, so that it would be open, for example, in an appropriate case to receive material which would ordinarily be excluded as hearsay, or to receive evidence in written form. But there must still be evidence, in the sense of there being some material put before the court which provides a rational basis for arriving at the state of satisfaction contemplated by s 20, and it must be put before a court in a way which gives the opposite party the opportunity to challenge that evidence, and to put the opposite party’s case in relation to the matter.

Ordinarily, therefore, one would expect that the hearing of an application under the Act, where the respondent appeared and contested the matter, would proceed in much the same way as a civil trial; the applicant would give evidence or call evidence, and the applicant’s witnesses would be cross-examined by the respondent, and the respondent would then give or call evidence, and be subject to cross-examination. One would expect that the hearing contemplated by s 48 would be a hearing in the conventional sense. I note that s 39 of the Act contains a mechanism by which a person can be summoned to give evidence as a witness, and the section contemplates that that person will give evidence as a witness at a hearing on oath or affirmation.”

[121A] Children are not normally witnesses: section 81A .

[122] Character witnesses are usually a waste of time as it is unfortunately the case that many perpetrators of domestic violence may appear outwardly to be otherwise respectable members of the community. Character witnesses cannot say what has occurred within the household unless they were actually there.

[123] Summonses should be issued against relevant witnesses or sources of documents. Examples are:

• Commissioner of Police

Crisp or Qprime records of any complaint of domestic violence/criminal complaint;

Tapes of record of interview;

S.93A interview with a child of the parties;

Police notebooks;

Photographs;

Physical evidence collected by police;

Criminal and traffic history of respondent;

QP9’s about each of the convictions.

• Police Officers

They are not in a position to produce documents but can give evidence about such things as:-

• the events of the night in question or earlier occasions;

• the involvement of the respondent and criminal offences including drug matters;

• child abuse or similar investigations undertaken providing oral testimony of the written records.

• Doctors/Hospitals/Psychiatrists

- Medical records of either the aggrieved or the respondent;

- If it is expected that the aggrieved, for reasons of shame, embarrassment or fear told lies to treating doctors about the causes of the injuries, it is much better to have that in the aggrieved’s affidavit and to explain why,

- On one occasion I called an expert from Brisbane about why women presenting to doctors tell lies about the nature of their injuries;

- It is generally much better to call the doctor who documented the injuries than to merely rely on the report. Some Magistrates may exclude a report without it either being sworn to or being subjected to testing under cross-examination. They, quite rightly in my view, feel that the respondent is entitled to natural justice including if necessary cross-examination of the doctor.

- On one occasion in the Federal Magistrates Court I called an expert who said that merely undertaking a perpetrator’s course does not mean that the perpetrator has necessarily changed.

• Department of Communities (Child Safety Services)

- There are many records the Department might hold that might be useful;

- Some magistrates consider that it may be irrelevant and seem as a fishing expedition. However it is often corroborative of assertions by one party or the other as to domestic violence.

• Respondent’s/Aggrieved’s Employer

- This may relate to hours of work in relation to alibi or similar evidence;

- Mobile phone accounts are often wonderful information to verify harassing telephone calls as to the date, number and frequency and or harassing SMS’s even though there is not the practice, as I understand it in Australia, for the telco to keep records of individual SMS calls due to privacy concerns.

17 Use of Affidavits

[124] Some magistrates require affidavits, others do not. The practice varies from court to court and from magistrate to magistrate. Some courts are insistent. Others prefer oral testimonies.

[125] The courts are closed: section 81 , although the aggrieved is entitled to have an adult support person: section 81(3). Obviously such a person ought not be a witness (or not be present in court until after he or she has given evidence).

[126] It has been my experience that the usual rules of cross examination are generally applied as well as the usual rules as to submissions.

[127] Although an order is usually for no greater than for 2 years: s. 34A , it may be for a longer period if there are special reasons: s. 34A (2).

[128] Consideration should be given, in leading evidence and the planning of the case, as to whether there are special reasons justifying an order for a longer period.

18 Weight of various exhibits

[129] The intention of section 84 is to keep the proceedings simple and to allow evidence in that might otherwise fail the hearsay test. Section 84 overcomes the rules as to hearsay. Some exhibits such as photographs, videos, doctor’s records and some of the others that I referred to above corroborate the version of your client.

[130] It is necessary to tie the exhibits to the theory of the case and cross-examination and submissions.

[131] In most cases, magistrates will not allow summonses to issue and be returnable on a date before the hearing although sometimes I’ve been able to have them returnable early. In more recent years, magistrates are becoming more flexible on this point, which has enabled a shortening of the trial and the settling of the matter.

Example H

Frida seeks a protection order against her boyfriend Peter. She asserts that his behaviour occurred largely on one occasion when she says she attended his office and that he yelled and hit her. He then fell on her in a scuffle and all his shirt buttons popped off. He was scratched on his chest during the course of falling.

He cross-applied saying that the girlfriend had attended uninvited and without notice in knowing that she was not welcome and that she had yelled and carried on like a banshee and that she had scratched him and caused the buttons to pop off. When the aggrieved split up from her husband, she also asserted domestic violence. He in turn asserted that she had been violent. His description, but particularly his photographs and videos showed in colour and movement the exact modus operandi as the boyfriend alleged.

Evidently, the videos and photos carried great weight and clearly were admissible.

19 Weight of evidence

[132]Sometimes the most weighty evidence is the un-stated, namely demeanour. Some of the most powerful evidence has been the impression gleaned from the respondent cross examining the aggrieved in the witness box. It doesn’t take much imagination to see how the arguments between the parties developed.

20 Procedure for giving evidence

[133] The usual procedure applies. If an affidavit, the witness confirms the contents of the affidavit. If oral testimony, the usual methods apply although this is always subject to the discretion of the Magistrate who can act in an inquisitorial manner pursuant to section 84.

[134] The applicant goes first. If it is a police application the officer is usually the first witness, before the aggrieved.

[135] The applicant’s case closes and then the respondent’s case opens.

21 Final submissions

[136] Usually this is dealt with in two parts.

Part 1

[137] The issues to be covered are whether or not a protection order should be made. It should cover the elements:

1 Is there the right type of relationship?

2 Has there been an act or a number of acts of domestic violence?

3 Are further acts of domestic violence likely or is a threat likely to be carried out?

[138] In respect of any proposed named persons have there been acts of associated domestic violence or are acts of associated domestic violence towards that named person likely?

Part 2

[139] Submissions should be about:

• any conditions that apply

• if not already covered, should there be any named persons and who?

• special reasons for the order being less than or more than two years.

22 Costs

[140] The respondent may seek costs under section 61 . This contains four elements:

1 Dismissal – therefore a withdrawal of an application even at a very late stage in a trial is not sufficient;

3 A matter of discretion as to whether or not a costs order is made. Magistrates take into account conduct and financial circumstances, and whether the parties have children. Sometimes a magistrate will be satisfied as to grounds 1 and 2 but refuse the order on this ground.

4 The amount of any costs order is governed in schedule 2 to the Justices Regulations, limited to, in most cases, $1,750. However, I am aware of one recent case where the costs order made was for a much higher amount.

23 Mutual orders

[141] If you have any choice in it- don’t! Cross-applications are still being sought with little evidence, and for the apparent purpose of intimidating the aggrieved. Wherever possible the survivor of violence should not be agreeing to mutual orders, as this immediately puts the person at risk of being seen as bad as the other and the blame of the violence being spread evenly. This mutualisation of violence states to the courts and police that each party is just as bad as the other. Mutual orders can lead to the courts and police not taking action to stop violence when they might otherwise have done so.

[142] Yes, it is cheaper to not to have a run a trial. Yes, it is less risky. But if you have a realistic choice, don’t agree to mutual orders except in cases where your client’s case is so weak that it is unlikely to succeed, or at the leats touch and go whether it will succeed.

24 Undertakings

[143] If the respondent offers an undertaking instead of an order, the usual rule, again, is don’t! Undertakings under the Domestic and Family Violence Protection Act 1989 do not have the effect of orders (unlike undertakings given under the Family Law Act). They cannot be enforced by police. They have no bite.

[144] Undertakings should only be agreed to when:

• There is a real risk that your client would not succeed; and/or

• The violence complained of is low-level;

• It is doubtful whether your client, due to a change in circumstances, is able to prove that further acts of domestic violence are likely.

[145] I have certainly acted for clients who offered undertakings when the alternative was to run a trial, in circumstances where it was likely that they would succeed. By giving the undertaking they saved considerable costs and the trauma of having to give evidence.

25. Don’t forget section 68R

[146] Section 68R is a section of the Family Law Act . It is often unknown or forgotten in domestic violence cases, including by magistrates. It can be very useful in providing safety.

[147] Key points:

• The magistrate must make a temporary or final protection order (including a variation order, including a temporary variation) before the jurisdiction under the Family Law Act is enlivened;

• The magistrate can, at the same time, make an order under the Family Law Act;

• The Family Law Act order lasts for 21 days only;

• The Family Law Act order can only revive, vary, discharge or suspend a previous Family Law Act parenting type order (whether that order is called a parenting order or an injunction);

• When making a temporary protection order, the Magistrate can only temporarily revive, vary or suspend the Family Law Act order.

Example I

A Family Law Act order had been made for Tom to:

• live with his mother, Vicki

• speak to his dad, Joe on the phone every other day, and

• to spend time with Joe, during the school holidays.

Joe lives interstate. Tom spends the holidays with Joe. On his return, Tom immediately tells his mother that he had beaten by his father with a stick. Vicki then telephones Joe, demanding to know an answer. Joe had previously been violent to Vicki. Joe screams at Vicki, making numerous threats to get even with her. Joe then calls Vicki round the clock, including sending a death threat. Joe also threatens to fly to Brisbane to “sort you out, once and for all”. Vicki applies for and obtains a temporary protection order and obtains an order under s.68R of the Family Law Act suspending the Family Law Act order for 21 days. This forestalls Joe’s efforts under the Family Law Act. Ultimately time between Tom and his dad comes to an end.

26. Breaches

[148] Sole responsibility for prosecution of breaches against the Act rests with police. The theory behind this is that a breach of an order is an offence against the State, and therefore it is the State’s responsibility to prosecute.

[149] The problem with this approach is that if police for some reason do not pursue prosecutions with vigour, then the perpetrator of violence might feel encouraged to keep breaching, and will continue to keep offending.

[150] Ways of removing police excuses from prosecuting are:

• Have clear orders. Usually (but see example J), the clearer the order, the more certain the breach, the easier to prosecute, the less excuse there is to prosecute.

• Write to police, setting out what the evidence is, and if necessary take it up the chain of command to ensure action is taken. This may be the station OC, or the station’s domestic violence liaison officer, the local domestic violence liaison officer or the ethical standards command, or the State domestic violence liaison officer.

• If necessary create a brief for police, so that the evidence is given to them on a platter.

• If there is an allegation about telephone calls, or conversations, record the calls and conversations. However, this has to be done carefully to avoid committing offences, and anyone in this position ought to consider it carefully to avoid being thought ill of in the Family or Federal Magistrates Courts.

• Just keep being persistent. The more persistent you are, the more likely police will do something.

[151] However, not everything works. The whole point of seeking a prosecution (and in obtaining an order) is to restrain a person from engaging in anti-social behaviour. Different methods should be chosen in different cases that may have the effect of stopping the violence. See example K.

[152] Just keep trying.

Example J

Maggie obtained a temporary protection order against Dennis. Dennis had engaged in stalking behaviour against Maggie, including sending her repeated harassing emails and notes. Once the temporary protection order was made, Dennis’ behaviour changed to sending the same types of notes, often every other day, but instead to Maggie’s solicitors.

A final protection order was obtained against Dennis. A condition was that Dennis was not to write to Maggie’s solicitors except if he engaged solicitors and they wrote, or if it was required for litigation, or it was not greater than once every 7 days.

A week later, Dennis wrote to Maggie’s solicitors, and continued to do so about every 2, 3 or 4 days for some weeks. There was no litigation on foot. It was a clear breach of a clearly worded order. As of a month ago (over a year after police were supplied with a statement by Maggie’s solicitor together with a copy of all of the offending emails, and a written explanation about how it was a breach), police had still not prosecuted, apparently in the belief that there was no breach!

Example K

Michelle obtained a final protection order against Rory. Rory started stalking Michelle, following her at the local train station and shopping centre. Michelle’s vegetable patch was mysteriously damaged one night. She would be followed down the street by Rory.

Police eventually brought two charges against Rory. He was not charged for the many other breaches he had committed. Rory felt so comfortable about his lot that he brought an application for a protection order against Michelle, and called the police officers who had charged him as character witnesses!

His behaviour towards Michelle continued.

On the first day of trial, Rory was subjected to two hours of extremely torrid cross-examination. The trial was adjourned for 3 months. Rory’s behaviour ceased the day following the first day of trial. The only thing that appeared to have changed was that cross-examination and scrutiny in court. Three months later Rory failed in his application. He had not resumed his ways even though the police prosecution had not yet been finalised.

27. Credibility and the Family Court

[153] You have one chance to assist your clients. They have one chance to apply for a protection order. It sounds obvious, but please oh please do not forget these things:

1 A client’s credibility is lost but once. That once can be devastating to the client and can have a huge impact for the safety of the client and the client’s children.

2 When an application for a protection order is filled out, it should be as detailed as possible about the history of domestic violence. If there ain’t no detail, there ain’t no order the magistrate can make. There is no use, a client later alleging in the Federal Magistrates Court that she had been the subject of vicious sexual assaults from her former partner, but never alleging those in her application for a protection order. Her failure to spell out that information in the protection order application will be used against her in the other proceedings.

3 The application for protection order should be completely truthful. It will be assumed that the applicant knew that it had to be truthful, in its entirety. If it is later exposed as being full of lies, or even gilding the lily, that fact will, sooner or later rebound on the applicant. If there are other documents around that will show the lies of the client, the other side will if they are half competent find those documents and use them against the client.

4 The application for a protection order is a document. It may have to be disclosed in other court proceedings. In any case it is capable of being copied and provided to a court for those court proceedings. If there are inconsistencies between what your client says in that document and in another document, you can be guaranteed that it will be used against him or her.

5 Ensure that the history of domestic violence set out in the application for protection order is cogent and legible.

6 Do not use the application for a protection order process for any ulterior process. Assume that every application for a protection order is one that may be going to trial, and that you have to have enough evidence to succeed at trial. Once in a court environment, this focus is essential. Domestic violence trials commonly go ½ a day to a day at a time and not infrequently 2-3 days, and have gone up to 7 days. If you are focused that your client’s application may end up at trial, and focus your client’s efforts accordingly, you will have done your client, and the administration of justice, a great service.

"To Stephen,
Thank you for all your support on this special day. Bringing about awareness about Domestic Violence is so very important. Thank you for your choice to stand up against it.
Blessings,
Narelle".
Narelle Warcon, author of Blonde Roots

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.